R v C, J; R v H, T - [2015] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, J; R v H, T
[2015] SASCFC 100
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)
30 July 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
The applicants pleaded guilty in the District Court in 2002 to sexual offending committed against the second applicant’s 23 year old daughter and nine year old grandniece – convictions were entered on the basis of those pleas – applicants seek an extension of time within which to apply for permission to appeal against their convictions – applicants seek to withdraw their pleas of guilty on the basis that allowing the pleas to stand would constitute a miscarriage of justice – applicants allege the Court relied upon illegally obtained evidence and that their guilty pleas were obtained by coercion or harassment from their legal advisors – discussion and application of the principles on setting aside convictions entered after a plea of guilty.
Held: Bampton J (Kourakis CJ and Nicholson J agreeing):
1. Extension of time within which to bring the applications refused.
2. Applications for permission to appeal dismissed.
Search Warrants Act 1985 (NSW) s 24A(2); Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
Bunning v Cross (1978) 141 CLR 54; [H] v The Queen; [C] v The Queen [2010] HCASL 223; Maxwell v The Queen (1996) 184 CLR 501; Meissner v The Queen (1995) 184 CLR 132; R v Brooks (2007) 96 SASR 479; R v [C] & [H] [2003] SASC 319; R v Chiron [1980] 1 NSWLR 218; R v Cincotta (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ At CL, Grove and Allen JJ, 1 November 1995); R v Davies (Unreported, New South Wales Court of Criminal Appeal, 16 December 1993, Badgery-Parker J); R v Ferrer-Esis (1991) 55 A Crim R 231; R v Hura (2001) 121 A Crim R 472; R v Pugh (2005) 158 A Crim R 302; R v Murphy [1965] VR 187; R v Sagiv (1986) 22 A Crim R 73; R v Wilkes (2001) 122 A Crim R 310, considered.

R v C, J; R v H, T
[2015] SASCFC 100
Court of Criminal Appeal: Kourakis CJ, Nicholson and Bampton JJ

KOURAKIS CJ. I would dismiss the applications for permission to appeal of Mr C and Ms H for the reasons given by Bampton J.
NICHOLSON J. I agree with Bampton J.
BAMPTON J.
Introduction
By Notices of Application for Permission to Appeal filed 7 February 2013, C, J and H, T (the applicants) seek an extension of time within which to apply for permission to appeal against convictions recorded in the District Court on 21 May 2002. The applications are over 10 years out of time.
Background
Each applicant pleaded guilty in the District Court to the following offences charged on a District Court Information dated 20 August 2001 (the Information):
·Count 1: Administering a stupefying drug to commit an indictable offence (against V1);
·Count 2: Rape (of V1);
·Count 6: Act of gross indecency (against V2);
·Count 8: Unlawful Sexual Intercourse with a person under the age of 12 (against V2);
·Count 9: Act of gross indecency (against V2); and
·Count 10: Act of gross indecency (against V2).
Mr C also pleaded guilty to counts 12 and 13 on the Information, namely, two counts of attempting to pervert the course of justice.
The victim of counts 1 and 2, V1, is the daughter of Ms H; and the victim of the other sexual offences, V2, is a great niece of Ms H.
The offending
In 1998 and 1999, the applicants were living together in a de facto relationship at North Haven. By late 1999, they had sold their home and were caravanning around Australia.
Whilst travelling through Victoria, the applicants committed sexual offending against an adult female, FB, in Victoria. As the applicants had moved on to New South Wales by the time FB reported the matter, the Victorian police obtained an extra-territorial search warrant in New South Wales. Acting on this warrant, on 30 September 1999, the police searched the applicants’ caravan in Deniliquin, New South Wales.
A number of videotapes and a Teledex containing names and contact details of the applicants’ friends and relatives in South Australia were seized from the caravan. The videotapes and Teledex were transferred to Victoria pursuant to a Ministerial arrangement for things seized in connection with extra-territorial offences, provided for in s 24A(2) of the Search Warrants Act 1985 (NSW) (Ministerial arrangement).
One of the seized videotapes was a ‘micro’ cassette tape (the video). The video when played depicted Mr C removing the underwear of an, as then, unidentified female and having sexual intercourse with her. The female appeared to be ‘sleeping’. Another videotape contained a portion of this vision which had been spliced together with pornographic films (the spliced video). Having viewed these tapes, the Victorian police contacted the South Australian police (SAPOL) who conducted investigations into the identity of the unconscious female. On 13 October 1999, the Victorian police brought a copy of the video to South Australia. As SAPOL suspected Ms H’s daughter was the unconscious woman, they showed the video to V1 in October 1999. V1 identified herself in the video and stated she was positive that she was under the influence of some drugs at the time the video was made and that she would never have consented to having sex with Mr C.
Thereafter, the copy of the video was handed over to SAPOL by the Victorian police. The same copy was shown to the pharmacologist, Professor White, on 1 May 2002. Having viewed the copy of the video, it was Professor White’s opinion that V1 was:[1]
… totally unresponsive to what was happening. Her eyes appeared closed, her arms and legs appeared not to move. In a normal sleep, the body would respond even if that person remained asleep. Her condition is inconsistent with a normal sleep.
[1] Jason White, 2 May 2002.
The offending captured on the video became the subject of counts 1 and 2 on the Information. The circumstances of this offending relate to an occasion in December 1998 when V1, then aged 23, was suffering from a severe case of viral gastroenteritis requiring hospitalisation. On 17 December, she was released from hospital into the care of Mr C and her mother and taken to their home at North Haven. That night the applicants, without V1’s knowledge, administered Rohypnol to her. V1 became unconscious. Mr C removed V1’s underclothing while she was unconscious before removing his own clothing and proceeded to perform penile vaginal intercourse on V1. Ms H videotaped the act of sexual intercourse whilst holding a torch directed at Mr C’s and V1’s genitals. Ms H used the video camera to zoom in on her daughter’s genitals whilst Mr C used his hand to part her labia before and after penetration. V1 has no independent memory of this offending.
The offending against V2 was discovered by SAPOL once they were provided with the names and telephone numbers recorded in the Teledex that had been seized from the caravan. Upon being contacted by police, V2 made a complaint about sexual offending committed against her by the applicants. This offending became the subject of the three acts of gross indecency and one act of unlawful sexual intercourse (counts 6, 8, 9 and 10) charged on the Information.
The offending against V2 was committed between March and September 1999 when she stayed with the applicants from time to time at North Haven. V2 was nine years old in 1999. Before committing the first act of gross indecency, the applicants showed V2 pornographic magazines depicting men and women having sexual intercourse. They then took her into their bedroom and said they would show her what she had seen in the magazines. The applicants removed some of their clothing and engaged in sexual intercourse while V2 was sitting on the bed watching them. Throughout, the lower parts of their bodies were exposed for her to see.
The second act of gross indecency took place after V2 was left by her parents to stay at the applicants’ house after they had shared a meal together. After her parents had left, V2 was taken to the applicants’ bed. The applicants were lying on top of the bed with the lower parts of their bodies naked. The applicants commenced to engage in sexual intercourse. Mr C pulled up a quilt cover over him and Ms H. He then gave V2 a torch and told her to go under the quilt and look at what he and Ms H were doing. V2 did so and, with the use of the torch, saw the applicants engaging in an act of intercourse.
The third act of gross indecency was committed when the applicants engaged in sexual intercourse in front of V2 while she was sitting on a couch in their lounge room. After the act of intercourse, Mr C masturbated himself and ejaculated on to V2 in the presence of Ms H.
The act of unlawful sexual intercourse committed against V2 took place when V2 was sitting on the applicants’ bed. Mr C was also lying on the bed with his genitals exposed. Ms H showed V2 how to lick Mr C’s penis. The applicants then made V2 lick Mr C’s penis.
Following their arrests in New South Wales the applicants were extradited to Victoria where they were charged with and pleaded guilty to administering a drug for the purpose of sexual penetration committed against FB. On 19 October 2000, Mr C was sentenced to imprisonment for two years and nine months and Ms H to three years imprisonment. After the applicants had each served 14 months of their Victorian sentences, they were extradited to South Australia on 20 November 2000 and charged with the sexual offending against V1 and V2 and two other complainants.
Before being extradited to South Australia, Mr C wrote two letters to acquaintances in Adelaide. One letter asked the person to whom it was addressed to say that he was present at the North Haven house on 17 December 1998 and that he had seen V1 naked, had seen her take off Mr C’s dressing gown and had seen her start having sex with him. Mr C asked the person to contact another person to see if he could also help and offered to pay that person.
In the other letter Mr C asked another acquaintance to also say they had seen V1 initiate sex with him. These letters are the subject of the two counts of attempting to pervert the course of justice charged on the Information.
Arraignment
The applicants were arraigned in the District Court on 20 August 2001. Mr C was represented by Mr R McKenney and Ms H by Mr B Sale. The endorsement on the Information records that both applicants were arraigned pursuant to Criminal Rule 10 (now Criminal Rule 25). Rule 10 provided for the Arraignment of Persons Committed for Trial on more than one charge as follows:
IV–10.02The arraignment pursuant to this Rule of a person committed for trial shall proceed in the following manner:‑
(a)A true copy of the information shall be provided to the person either prior to or at the time of his arraignment;
(b)A summary of the offences charged shall be read to the person by a person directed by the Judge;
(c)The person shall either prior to or at the time of his arraignment write against each charge on a true copy of the information his plea to such charge;
(d)At the time of his arraignment, the person shall sign his name at the foot of that true copy of the information and his signature shall be witnessed by his solicitor or counsel or, if the person shall not be represented, by a person directed by the Judge;
(e)The Judge before whom the person has been so arraigned shall, in accordance with the signed copy of the information, record the respective pleas;
(Emphasis added)
The District Court file in this matter includes a copy of the Information signed by Mr C and witnessed by Robert McKenney. This copy records in handwriting the words “not guilty” against all counts 1 to 13 and the date 20 August 2001.
The District Court file also includes a copy of the Information signed by Ms H and witnessed by B Sale. This copy records in handwriting the words “not guilty” against counts 1 to 9 charged against Ms H and the date 20 August 2001.
The guilty pleas to counts 2, 12 and 13 entered 6 May 2002
The trial of all counts on the Information was listed for hearing on 6 May 2002. On the first morning of the trial Mr McEwen, counsel for Mr C, asked the trial Judge, Judge Muecke, for the arraignment to be adjourned until after lunch. Mr McEwen said:[2]
I am going to ask your Honour to postpone commencing this matter until after lunch, and even postpone an arraignment until then. I will just briefly outline my reasons. I have told my learned friend this, and I understand there is no opposition to this course. Firstly, there is a likelihood of some pleas, but I want to formalise my instructions on that, so I don’t want to arraign and have all not guiltys and then turn around on that. Secondly, I wish my client to view a particular video that is an exhibit in this matter. I have seen it, but the accused has been in custody – and I expect most of what I am saying now will be reflected by Mr Tothill in a minute – but certainly as far as my client goes, he hasn’t seen the actual exhibit and I want him to see it.
It is clear from the transcript that it was being suggested that the viewing of the video would take place before guilty pleas were entered by the applicants later that afternoon.
[2] T 2.
That afternoon Mr C and Ms H were arraigned on all counts except count 5. Both pleaded guilty to count 2, the rape of V1 whereupon a nolle prosequi was entered in respect of count 5. Mr C also pleaded guilty to counts 12 and 13; the two counts of attempting to pervert the course of justice.[3]
[3] Counts 12 and 13 are not appealed against.
The voir dire
Following the entering of the pleas, the Court proceeded to hear argument on the voir dire notices that had been filed by both applicants. The notices concerned joinder and severance of the multiple counts and the admissibility of the video.
At the commencement of the voir dire, the prosecution conceded that a separate trial should take place in relation to counts 6 to 11 concerning V2.
Argument then proceeded on the voir dire regarding the issue of whether there was cross-admissibility between count 1, concerning V1, and counts 3 and 4 concerning two different complainants.
The prosecution relied on V1’s appearance in the video as demonstrating that she had been drugged.[4] The prosecution further argued that the accounts of each of the complainants in counts 3 and 4 also revealed that they had been drugged and accordingly there was cross-admissibility between counts 1, 3, and 4.
[4] T 7.
Mr Tothill, counsel for Ms H, conceded that the video could be shown to the Court for the purposes of the voir dire, however, he indicated that he would maintain an objection to admissibility based upon the search and how the video had been obtained.[5]
[5] T 16.
The original video was then admitted on the voir dire as “VDP1 Video Seized in New South Wales on 30/9/1999 from accuseds’ caravan” and played to the Court.
After the Court had viewed the video, the prosecutor described in graphic detail what the video depicted. The prosecutor described V1 as “motionless” and “obviously unconscious” and said:[6]
… clearly she is still fast asleep, or whatever, or affected by what the Crown says must have been a very powerful drug, and she is lying absolutely dead still on the bed on her back, the inference being that the accused had been able to move her into a completely different position and still she is motionless. Then there is a shot of her face and you can see that she is still obviously unconscious, her eyes are shut, and then there is another position where she is on her side and her legs are apart, and again there is absolutely no movement from her at all, and the accused [Mr C] is opening her vagina again and she doesn’t flinch in the slightest. So the Crown case is that from the video itself there is a very high suggestion that [V1] has been drugged, that she is suffering from a drugged state.
The prosecutor informed the Court that the video tendered on the voir dire and viewed by the Court was the video shown to V1 on 13 October 1999 at which time V1 identified herself in the video. The prosecutor also informed the Court that it was the video viewed by Professor White prior to giving his opinion regarding V1’s unresponsive state as seen in the video.[7]
[6] T 21.
[7] T 24.
A detective gave evidence on the voir dire confirming that he had been given a copy of the video that was shown to V1.[8] The detective said that this was a copy of the video exhibit VDP1 and that it had subsequently been booked into Adelaide (Police) Property but destroyed.
[8] T 109.
The applicants contended during the voir dire that the direct transfer of exhibits between the Victorian police and SAPOL was unlawful or improper. It was argued that the exhibits should have been returned to New South Wales following their use in Victoria. The applicants asserted they should have been transferred from New South Wales to South Australia pursuant to a Ministerial arrangement.
During the continued hearing of the voir dire on 9 May 2002, Mr McEwen announced that he was no longer able to act for Mr C. Mr C’s solicitor, Mr Dibden, was able to continue acting. However, the voir dire was adjourned to enable Mr Dibden to engage alternative counsel.
Mr Boucaut appeared on 13 May and informed the Court he was instructed by Mr C and he needed time to acquaint himself with the matter. The matter was adjourned to a brief hearing on 15 May. Mr Boucaut informed the trial Judge on 15 May that he had met Mr C for the first time that morning and the voir dire was adjourned to 21 May 2002.
The guilty pleas to counts 1, 6, 8, 9 and 10 entered 21 May 2002
On 21 May 2002, Mr Boucaut asked Judge Muecke to make the courtroom available so that a joint conference could take place between both counsel and both applicants. Both applicants were in custody at that time, and Mr C was in a wheelchair. Assurances were given by counsel that the applicants would not be allowed to collude and that the joint conference was necessary in order to resolve the trial.
Following the joint conference, Mr C and Ms H pleaded guilty to counts 1, 6, 8, 9 and 10 on the Information. Upon the entering of the guilty pleas, the Director entered nolle prosequies on the balance of the charges; counts 3, 4, 7 and 11.
No final ruling was requested or made in respect of the admissibility of the video.
Mr C’s apology after hearing the victim impact statements
On 23 August 2002, victim impact statements were read to the Court and the video was tendered “for sentencing purposes”. The sentencing Judge described in his remarks that after hearing the statements and before sentencing submissions, Mr C spontaneously, from the dock, made a statement to V1, V2 and V2’s mother, K, saying he was very sorry for what he had done. He said:
I’m very sorry, [V1] for what I have done. I know I’ve done wrong and I’ve lost you and lost our family. I know I’m – I don’t know how I ever will be going to make this up to anybody. Please accept my apologies if you can, and [V2] and [K], I am very sorry for what I have done. Thank you.
Mr Geoffrey Glanville of the Prison Fellowship wrote a letter tendered during sentencing submissions wherein he stated “[Mr C] has demonstrated his remorse for his crimes and has turned to faith in God...”.
Ms H’s apology during sentencing submissions

An apology was read out by Ms H in Court during the adjourned sentencing submissions on 1 November 2002.
The sentences
Mr C was sentenced on 17 December 2002 to imprisonment for 20 years with a non‑parole period of 15 years. Ms H was sentenced on 17 December 2002 to imprisonment for 18 years with a non‑parole period of 13 years.
In his sentencing remarks, Judge Muecke said he did wonder whether Mr C’s spontaneous expression of sorrow was convenient but ultimately he accepted Mr C was genuinely sorry for what he had done. His Honour said he accepted Ms H’s “expression of sorrow and remorse” was genuine although “it was, however, only recently proffered and for some time before that you used other members of your family to try and persuade V1 to drop her charges”.
Appeal against sentence to the Court of Criminal Appeal
On 12 September 2002, the Court of Criminal Appeal dismissed the applicants’ appeals against sentence.[9]
[9] R v [C] & [H] [2003] SASC 319.
Application for special leave to appeal to the High Court
On 15 June 2010, the applicants, acting in person, made application to the High Court for special leave to appeal against:[10]
… the whole of the judgment of the CCA of the SCT delivered on the 12 September 2003, and “the whole of the judgement, conviction, and sentence of His Honour Judge Geoffrey Muecke of the District Court of South Australia delivered on 17 December 2002.
(Emphasis added)
[10] See [2010] HCASL 223.
The grounds relied upon by the applicants in their respective applications for special leave were:
A)The Application and Leave to Appeal is on grounds of the whole case. The Honourable Court hear the whole case.
B)Apprehension of Miscarriage of Justice
C)fresh and new evidence
D)applicant not guilty of offences
E)applicant was coerced and pleaded guilty against his (her) will
F)denial of natural justice
G)procedures to be observed in criminal proceedings were not observed and followed
H)failure to disclose certain evidence material, and evidence that was withheld and destroyed
I)evidence illegally obtained
J)evidence improperly admitted to evidence
K)the Judgement of the Court of criminal appeal in the case is fundamentally flawed, unreasonable and unsustainable and must be quashed and set aside.
On 30 September 2010, the High Court dismissed the application pursuant to r 41.10.5 saying:
Each applicant now seeks special leave to appeal against the orders dismissing her or his appeal against sentence. Each further seeks to contend that her or his conviction should be set aside. Each says that she or he was forced to plead guilty.
Each application is made many years out of time. Each applicant has now completed a substantial part of the relevant non‑parole period fixed.
We are not persuaded that it is arguable that it would be in the interests of justice generally, or in either of these particular cases, that there now be a grant of special leave to appeal.
Application for extension of time to apply for permission to appeal
Almost two and a half years after the High Court dismissed their applications for special leave, the applicants made these applications for an extension of time within which to apply for permission to appeal against their convictions (the applications). The applicants seek to withdraw their pleas of guilty on the basis that allowing the pleas to stand would constitute a miscarriage of justice.
The proposed grounds of appeal are that the Court relied upon illegally obtained evidence and that their guilty pleas were obtained by coercion or harassment from their legal advisors.
Mr C swore an affidavit on 16 October 2013, a three page affidavit on 6 November 2013 and a nine page affidavit on 6 November 2013 in support of his application. Ms H swore an affidavit on 10 October 2013, a three page affidavit on 11 November 2013 and a nine page affidavit on 11 November 2013 in support of her application. Both applicants stated in their nine page affidavits sworn 11 November 2013 that they had decided not to waive privilege.
The allegation of illegally obtained evidence concerns the seizing of the video and the Teledex from the applicants’ caravan in Deniliquin, New South Wales. As referred to above, the obtaining of the video was one of the subject matters of the voir dire notices which Judge Muecke was not ultimately required to determine as the applicants entered their guilty pleas. The obtaining of the Teledex was not specifically mentioned in the voir dire notices but was referred to in argument during the voir dire.
On 2 September 2013, Mr K Borick QC appeared before Kelly J and informed her Honour that he had been asked by Mr Glanville “to have a look at the ground of appeal and to give him some assistance”. Mr Borick said his view had been passed onto the applicants and that they wished to continue with their appeal but that he would not be acting. Thereafter, the applicants appeared in person before Kelly J and it would appear prepared their applications and affidavits in support without legal assistance.
On 27 November 2013, Kelly J refused both applicants permission to appeal saying that it appeared that the real issue was whether there was an arguable case that the applicants “were in the circumstances coerced, harassed or induced to enter pleas by what can only be described on their affidavit evidence as improper behaviour by all counsel involved”.
Justice Kelly said that the applicants’ refusal to waive privilege effectively prevented her from properly considering the circumstances raised by their affidavits. Her Honour concluded that she was not prepared to draw the inference from the applicants’ affidavits that there was, taking into account all of the circumstances, any real argument that they were improperly convicted.
In addition, Kelly J stated that she did not regard the undetermined issue on the voir dire of the legality of the video and the Teledex as material which could in any way undermine the pleas of guilty entered by the applicants.
Referral of the applications to the Full Court
Consequent upon Kelly J’s refusal, the applicants requested that their applications be referred to the Full Court pursuant to Criminal Rule 120. In accordance with Criminal Rule 120(4), the applications for extension of time to apply for permission to appeal were heard at the same time as the merits of the appeal.
Appeal against conviction following guilty pleas
The question for this Court is whether or not allowing the appellants convictions to stand would constitute a miscarriage of justice.[11]
[11] Criminal Law Consolidation Act1935 (SA) s 353.
A plea of guilty “forecloses the issue of innocence or guilt”.[12] It is an admission of the essential elements of the crime charged[13] but it “must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt”.[14]
[12] R v Brooks (2007) 96 SASR 479 at 490 (Doyle CJ).
[13] R v Pugh (2005) 158 A Crim R 302 at 305 and the cases cited therein.
[14] Maxwell v The Queen (1996) 184 CLR 501 at 511.
It is for these reasons that the Court adopts a cautious approach and it is only in exceptional circumstances that the Court will set aside a conviction allowing a change of plea.
In Meissner v The Queen, Brennan, Toohey and McHugh JJ said:[15]
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 that 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 in truth not guilty of the offence.
[15] Meissner v The Queen (1995) 184 CLR 132 at 157.
In Maxwell v The Queen,[16] Gaudron and Gummow JJ in their joint judgment stated that allowing a guilty plea to be withdrawn “involves a consideration of the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law, inability to obtain legal representation or if the interests of justice otherwise require”.[17]
[16] (1996) 184 CLR 501.
[17] Maxwell v The Queen (1996) 184 CLR 501 at 531.
In R v Hura,[18] Spigelman CJ summarised the circumstances identified by the New South Wales Court of Criminal Appeal as grounds to set aside a conviction following a plea of guilty. Those circumstances included:
[18] (2001) 121 A Crim R 472 at [32].
·Where the Appellant “did not appreciate the nature of the charge to which the plea was entered”;[19]
·Where the plea was not “a free and voluntary confession”;[20]
·The “plea was not really attributable to a genuine consciousness of guilt”;[21]
·Where there was “mistake or other circumstances affecting the integrity of the plea as an admission of guilt”;[22]
·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”.[23]
Chief Justice Spigelman cited with approval the passage in the judgment of Badgery‑Parker J in R v Davies where his Honour said:[24]
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.
[19] R v Ferrer-Esis (1991) 55 A Crim R 231 at 233.
[20] R v Chiron [1980] 1 NSWLR 218 at 220.
[21] R v Murphy [1965] VR 187 at 191.
[22] R v Sagiv (1986) 22 A Crim R 73 at 80.
[23] R v Cincotta (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ At CL, Grove and Allen JJ, 1 November 1995).
[24] R v Davies (Unreported, New South Wales Court of Criminal Appeal, 16 December 1993, Badgery‑Parker J).
In R v Wilkes,[25] Wood CJ at CL, with whom Giles JA and Simpson J agreed, identified the following three matters to be considered in determining whether allowing a plea to stand will constitute a miscarriage of justice:[26]
(a)whether the advice given was or was not imprudent or inappropriate;
(b)whether his plea was or was not attributable to a consciousness of guilt; and
(c)whether the material before this Court shows that there is or is not a real question about his guilt.
[25] (2001) 122 A Crim R 310.
[26] R v Wilkes (2001) 122 A Crim R 310 at 315.
It is for the applicants to satisfy the Court that a withdrawal of their pleas is warranted. They bear the onus of showing there is a real question about their guilt and therefore a real question to be tried.
Directions hearing before Justice Sulan on 13 March 2014
At a directions hearing before Sulan J on 13 March 2014, Mr Moen appeared “on a pro bono basis on instructions from the Fellowship”.
Justice Sulan expressed his view that whilst the applicants had told Kelly J that they were not prepared to waive privilege they had in fact done so. The applicants had both deposed to the legal advice they had received in the affidavits filed in support of their applications.
Delay
Mr C deposed in his three page affidavit sworn 6 November 2013 and Ms H deposed in her three page affidavit sworn 11 November 2013 to the time and delay associated with appeals they have pursued over the last 10 years and each asserted that they “have exhausted all these avenues of appeal and now bring this application for appeal against conviction” and that “the various lawyers consulted about my appeal concentrated on the length of my sentence and overlooked the question of appeal against conviction”.
During the hearing of the applications before Kelly J on 20 November 2013, Mr C submitted that the delay in prosecuting the matter was due in part by him learning to speak, read and write English properly. It is of note that at no stage during the 2002 proceedings before the District Court or Supreme Court in 2003 was Mr C assisted by an interpreter.
Mr C filed further affidavits sworn 10 April 2014, 6 June 2014 and 21 July 2014. Ms H filed further affidavits sworn 18 April 2014, 4 June 2014 and 22 July 2014. These affidavits expanded on the complaints made in the 2013 affidavits.
Waiver of legal professional privilege
In his affidavit dated 6 June 2014, Mr C deposed to having waived legal professional privilege in this matter on 30 April 2014. In her affidavit dated 4 June 2014, Ms H deposed to having waived legal professional privilege in this matter on 18 April 2014.
All of the affidavits sworn by the applicants were received into evidence.
Affidavits filed in response to the applications
The affidavit of Emily Telfer sworn 21 May 2014 was filed by the respondent. Ms Telfer appeared as junior counsel for the Director of Public Prosecutions before Judge Muecke in 2002 and as counsel at the hearing before Kelly J.
Following the confirmation of the waiver of legal professional privilege by Mr C and Ms H, the following affidavits were filed:
·affidavit of William Boucaut SC, counsel for Mr C in 2002, sworn 23 June 2014,
·affidavit of Timothy Dibden, Mr C’s solicitor in 2002, sworn 30 June 2014,
·affidavit of Benjamin Sale, Ms H’s solicitor in 2002, sworn 26 June 2014 and
·affidavit of Paul Tothill, counsel for Ms H in 2002, sworn 3 July 2014.
Mr Boucaut’s, Mr Dibden’s, Mr Sale’s and Mr Tothill’s affidavits were received into evidence.
The evidence given before the Court of Criminal Appeal
The applicants were cross-examined on their affidavits and the respondent called Mr Dibden, Mr Boucaut SC, Mr Sale and Mr Tothill to give evidence. Ms Telfer was not required for cross-examination on her affidavit.
The affidavit evidence of Mr C and Ms H
The affidavits sworn by Mr C and Ms H are identical in many ways. Ms H could not explain the similarities under cross-examination and did not appear to understand or know anything about much of what was in the affidavits. Ms H said she did not know how they were prepared and just signed them when they were brought to her by a prison officer. Ms H also agreed that Mr Glanville helped to prepare the affidavits.
Mr C said he did not tell Ms H what to say or write in her affidavits but admitted they look alike.[27] He denied providing his affidavits to Ms H for her to copy and denied that Ms H provided her affidavits for him to copy.
[27] T 60-61.
The affidavits sworn in 2013 make complaints about admissibility of the video, and that the video was destroyed. The affidavits referred to being told to plead guilty, harassment in the joint conference, being told they would be released soon if they pleaded guilty and that they were under medication.
In Mr C’s affidavit sworn 10 April 2014 and Ms H’s affidavit sworn 18 April 2014, they complained for the first time that the video had been tampered with, that they pleaded guilty because they were told the video had been admitted, and that no instructions were taken by their legal advisors. They both deposed that on 6 May 2002 their respective counsel asked that the trial be adjourned so that they could view the video. They said they viewed it for the first time on 6 May and told their counsel it had been tampered with, that there was no sound and it did not appear to be authentic. They said when Court resumed they pleaded guilty because they were told they had to. They both said:
I did not want to make a decision of such magnitude on 6 May 2002 after seeing the video for the first time and only after discussing the matter with [Mr C] (Ms H) and my counsel very briefly.
(Emphasis added)
The applicants asserted in their April 2014 affidavits that they told their advisors that they were not guilty, that they were not told what the balance of the charges were, that Mr Tothill told Ms H she and Mr C had to plead guilty and that he threatened to walk out of the joint conference.
Mr C’s evidence
Mr C agreed that he is the person shown on the video having sex with V1 but that he believed she was conscious throughout.[28] He said he did not administer Rohypnol to V1 but counsel told him that it was found in his car so he was guilty for that. He admitted that he sent the letters that were the subject of counts 12 and 13. He said that he was not guilty of the balance of the offences involving V2.
[28] T 7
Mr C said that Mr McEwen advised him to plead guilty and said “the Judges have seen the video and it will be admitted in court, therefore the only choice is to plead guilty”. He asserted he received a phone call from Ms H relaying the message that Mr Tothill had told them both to plead guilty.[29]
[29] T 9.
In his affidavit sworn 21 July 2014, Mr C said that he and Ms H agreed not to plead guilty after the phone call in which Ms H relayed Mr Tothill’s advice. He said in evidence that when Mr McEwen advised the same thing on 6 May 2002 they had no choice but to plead guilty.
Having asserted he did not provide written instructions to plead guilty, Mr C was shown Exhibit TMAD1 to Mr Dibden’s affidavit and acknowledged that he gave signed instructions to Mr Dibden to plead guilty to Counts 2, 12 and 13 on 6 May 2002. Mr C was then asked whether he listened to the legal argument that continued on the voir dire after he gave those instructions. His answer was that he “could not understand very much in those days going back I wasn’t very good at my English, I didn’t understand very much”.[30]
[30] T 22.
Mr C said that he pleaded guilty to rape in the morning on 6 May 2002 and was shown the video in the afternoon. He said he did not see the video before pleading guilty and he was told it was already admitted. This evidence is at odds with his affidavit dated 10 April 2014 wherein he says he did not want to make a decision of such magnitude on 6 May 2002 after seeing the video for the first time and after discussing the matter with Ms H and his counsel very briefly.
Mr C also said when asked by the Chief Justice whether the video was shown to him before or after pleading guilty, “ I can’t really recall, I think it was before, your Honour”.[31]
[31] T 67.
Mr C said the video had been edited to remove “how it began in the lounge room, we were having a drink and mucking around and things started in the lounge room, in their part they only show the parts they wanted to show, they edited the rest and took all the sound and everything out of it.”[32] He said “they moved things around [in the video] to make it look like things that wasn’t there”.[33] He said he told Mr McEwen that the tape was not authentic and had been tampered with but Mr McEwen did not want to talk about it with him.
[32] T 17.
[33] T 17.
Mr C denied there were two videos seized from his caravan. He denied creating the spliced video which including portions of the video, as referred to in Judge Muecke’s sentencing remarks.
Mr C said that he pleaded guilty to counts 1, 6, 8, 9 and 10 under duress. As set out above, count 1 related to allegations made by V1 and counts 6, 8, 9 and 10 all related to allegations made by V2. Mr C said that V2 was telling lies and that the police had contacted her after illegally obtaining his Teledex from inside his caravan.[34] He said he was not aware of the charges he faced except for the numbers of the counts. During the hearing Mr C was shown the Information endorsed in accordance with Rule 10. He acknowledged that each page bore his signature.[35] He said he may have signed the Information but could not remember reading the document. He said he did not ever receive any paperwork from his lawyers detailing the charges and was never shown any witness statements.
[34] T 25
[35] T 42.
Mr C told this Court that his apology to V1 and V2 was untrue, “That’s what came out of my mouth on the spur of the moment”.[36] He said he did not instruct Mr Boucaut that he wanted to make an apology.
[36] T 46-47.

Mr C admitted he wrote a letter dated 17 October 2002 that began:
I am very sorry for the terrible things I have done. I am living with the guilt every day. I have learned my lesson, and never again I will do wrong by anyone.
Mr C said his reference to terrible things in this letter was “dragging the whole lot of family and friends into it by police going to their doorstep”. He said that if the letter was meant to be referring to what he had done to V1 and V2 then he would have included their names.
Mr C was questioned about the letter written by Mr Glanville, tendered during sentencing submissions, wherein Mr Glanville said that “[Mr C] has demonstrated his remorse for his crimes and has turned to faith in God.” Mr C said that he told Mr Glanville he was not guilty and he was sorry for dragging the people who had nothing to do with anything that the police had done.[37] He said that he did not know what the word ‘remorse’ meant until recently. He maintained that he has always told Mr Glanville that he was not guilty.
[37] T 54.
Mr C said he did not request the joint conference that took place in the courtroom. He said that all the lawyers ever did in the joint conference was tell them to plead guilty and the other charges would not go ahead. He maintained that he did not hear Ms H indicate that she was prepared to plead guilty during the joint conference.
Mr C said the joint conference was like a pressure cooker and that he and Ms H made requests for more time to consider their positions.
Mr C could not recall if he signed written instructions to Mr Boucaut that he would plead guilty to counts 1, 6, 8, 9 and 10.[38] He said his language skills were poor in 2002 and he did not understand all the legal jargon. It is also of note that the transcript of what appears to be a spontaneous apology following the reading of the victim impact statements does not give any hint of language difficulty. Further, the terms of Mr C’s letter of 17 October 2002 fly in the face of any suggestion of a language barrier. It was Mr Dibden’s evidence that Mr C spoke with an Indian accent but was “otherwise perfectly fluent.”[39]
[38] T 40.
[39] T 134.
Mr C’s evidence is peppered with inconsistencies and his assertion that he had poor English skills in 2002 is just not plausible. Having regard to the whole of the evidence before this Court and the findings I make below, his allegations that his pleas were the product of a mistake and incorrect advice have no basis whatsoever.
I do not accept Mr C’s evidence.
Ms H’s evidence
Ms H said she had not read the affidavits sworn by her and dated 10 October 2013 and 11 November 2013 and that she signed them without knowing their contents. In these circumstances, the clear inference to be drawn from her affidavits is that they are verbatim copies of Mr C’s affidavits. A blatant example of this is found in paragraph 8 of her nine page affidavit dated 11 November wherein she deposed “I worked Saturdays as an all-night taxi driver” and “I woke my wife…” just as Mr C deposed in paragraph 8 of his nine page affidavit dated 11 November 2013.
Ms H said she had not seen the letter of apology before being told to read it out in Court during the sentencing submissions. She conceded in cross‑examination that the words in the apology are her words but that she did not write them.[40]
[40] T 100.
Ms H’s evidence was that that Mr Sale visited her in the Adelaide Women’s Prison but in cross-examination she denied ever having being visited in prison by Mr Sale.
Ms H was cross-examined about the information Dr Raeside detailed in his report dated 6 March 2002. Dr Raeside recorded that Ms H told him that she videotaped Mr C having sexual intercourse with V1 and that she believed she may have been reliving what happened to her when she was gang raped. Ms H said she had no recall of what she told Dr Raeside and, in particular, no recall that she told him that she believed what was done to V1 was subsequently “classed as rape because V1 didn’t move”.
The inconsistencies and implausibility of Ms H’s evidence together with the remarkable similarities between her affidavits and Mr C’s affidavits are such that I reject her evidence.
Ms Telfer’s affidavit
In her affidavit, Ms Telfer deposed that from 30 April 2002 the senior prosecutor in the trial held instructions permitting her to negotiate a resolution to the charges involving the victims V1 and V2 and not proceed with the remainder of the charges against the applicants. Ms Telfer said it was her recollection that the resolution proposed originated with the prosecution. Ms Telfer stated, by reference to a prosecution file note dated 16 May 2002, that the senior prosecutor had a telephone conversation with Mr Boucaut. The discussion related to pleas being entered by Mr C to counts 1, 2, 6, 8, 9 and 10 and discontinuing the remainder of the charges, provided that Ms H pleaded to the same charges. Ms Telfer stated that the note recorded that Mr Boucaut indicated that he had spoken to his client but had not got instructions although he had recommended it to him. The file note recorded that Mr Boucaut indicated that he had spoken with Mr Tothill.
Further, Ms Telfer said she recalled that on 21 May 2002 the possibility of a conference was discussed with the applicants’ counsel. She said she does not now recall the precise detail of discussions but the effect of them was that before either applicant was prepared to make any decision about the plea proposal, they wished to be able to speak to one another about it. She deposed that assurances were given by the applicants’ counsel to the prosecution that the conference was not an opportunity to collude or concoct evidence between them but to genuinely discuss the merits of the resolution proposed.
Mr Dibden’s evidence
Mr Dibden confirmed that he acted as Mr C’s solicitor in 2002 when he entered his pleas through to the sentencing process. He confirmed that Mr McEwen was counsel when the pleas to counts 2, 12 and 13 were entered and Mr Boucaut was counsel when the pleas were entered to counts 1, 6, 8, 9 and 10.
Mr Dibden said that when he assumed conduct of the matter the trial date had been set and that Mr C was very familiar with the nature of the charges against him and had clearly been through them with at least one earlier legal adviser. He said that Mr C had certainly seen a copy of the Information.[41]
[41] T 19.
Mr Dibden said that at no time did he tell Mr C that he had to plead guilty, he was not aware of any other counsel telling Mr C he had to plead guilty, he did not at any stage have a concern that the guilty pleas were involuntary on Mr C’s part or that he was entering his guilty pleas for any reason other than he fully accepted his guilt.
Mr Dibden said that his only memory of seeing the video was in a courtroom at a time, he thought, when Mr C and Ms H were present. He said it was also his memory that “we were always hopeful of resolving it however and I think the video evidence, once we saw it, made that probably more imperative”.[42]
[42] T 114.
Mr Dibden confirmed that exhibit TMAD1 to his affidavit is a copy of the instructions Mr C signed in front of him on 6 May 2002 instructing him to enter guilty pleas to the rape of V1 (count 2) and to the two counts of attempting to pervert the course of justice, counts 12 and 13.
He recalled conferences with Mr Boucaut and Mr C occurring in the cells of the Sir Samuel Way building. Exhibit TMAD3 to Mr Dibden’s affidavit is a copy of a note of a conference that took place on 17 May 2002.
Mr Dibden said that Mr C and Ms H had clearly expressed a desire to have the joint conference.[43] He has a clear memory that Mr C acknowledged the strength of the Crown case in respect of some of the counts and that he did not want to plead to anything until he had spoken with Ms H. It was his recollection that Ms H did not want to plead to anything and Mr C said words to the effect “look if you let me speak to her, I’m sure we can sort it out”.
[43] T 120.
The joint conference between the applicants and the legal advisers was then arranged and took place over an hour or so in the courtroom. The applicants’ options were explained frankly and the applicants were allowed to talk quietly together and, as a result of that, they gave instructions to plead guilty. Mr Boucaut and Mr Tothill obtained the applicants’ written instructions. Mr Dibden said that Mr Boucaut may have provided him with a copy of Mr C’s instructions and if he had they may have gone with his file to Simon Slade, who took over the appeal.
There was no request from Mr C to think about his options overnight. Whilst Mr Dibden does not recall Mr Boucaut saying during the conference that pleas to specific counts had “to be done now”, it may have been that he said “if you don’t resolve this by the end of the voir dire, then all bets are likely to be off”.
Mr Dibden said there would have been some discussion about the prospects of success of the voir dire. In particular, if the video stays in “you are in serious trouble”.
Mr Dibden did not hear Mr Tothill threaten to walk out at any time during the joint conference. He said counsel were not getting frustrated and nothing indicated to him that Ms H was having difficulty understanding what was going on in the joint conference.[44]
[44] T 126-127.
Mr Dibden confirmed that exhibit TMAD4 to his affidavit is a copy of a letter he received from Mr Boucaut dated 23 May 2002 after the pleas had been entered. He confirmed that Mr Boucaut’s report of the conference that Mr C and Ms H had expressed a desire to avoid trial and accept the proposal put by the prosecution accorded with his memory of what occurred. He confirmed that Mr Boucaut’s report of taking instructions from Mr C at the joint conference to the effect he would plead guilty to counts 1, 6, 8, 9, and 10 also accorded with his memory of what happened.
Mr Dibden said it was Mr C who had said he wanted to make an apology and it was not something proposed by himself or Mr Boucaut.
Mr Dibden said that Mr C was told he would receive an immediate term of imprisonment and it would be significant. Exhibit TMAD9 to his affidavit is a letter from Mr Boucaut dated 5 November 2002 referring to the sentencing submissions on 1 November and that he “… advised [Mr C] he can expect quite a long time in gaol. He understands this.”
Mr Dibden said at no stage did Mr C complain to him about the way in which the guilty pleas were entered.
Mr Dibden drafted a notice of appeal against sentence. Thereafter other solicitors were instructed.
I accept Mr Dibden’s evidence.
Mr Boucaut SC’s evidence
Mr Boucaut SC confirmed that he acted as counsel for Mr C when he pleaded guilty in 2002. He has not retained any papers in respect of the matter.
Mr Boucaut gave evidence that Mr C knew what he was pleading to and that he would have made it plain to Mr C there was a strong case against him but the plea was up to him.
Mr Boucaut confirmed he sent the letter dated 23 May 2002, referred to above, to Mr Dibden reporting on the entering of the guilty pleas on 21 May 2002. Importantly, the letter states that Mr Boucaut took written instructions about Mr C pleading guilty to counts 1, 6, 8, 9 and 10 and that Mr C was told that in so pleading he would be admitting the conduct that gave rise to the charges. Mr Boucaut reported in the letter that Mr C was told by him that any suggestion V1 was consenting to an orgy of drug taking, alcohol and sex was likely to be viewed by the jury as utter nonsense given V1 had just been released from hospital following treatment for viral gastro-enteritis. Whilst he cannot recall Mr C providing written instructions to plead guilty, Mr Boucaut said he would not have referred to that occurring in the letter unless he had received such written instructions.
Mr Boucaut also confirmed he sent the letter to Mr Dibden dated 5 November 2002 stating he had advised and Mr C understood that he could expect a long time in goal. Mr Boucaut said that he had had a discussion with Mr C about lengthy imprisonment before he pleaded guilty on 21 May 2002 and that he did not tell Mr C that if he pleaded guilty he would be released very soon.
Mr Boucaut recalled meeting with Mr C in the cells prior to the joint conference and that Mr C said he wanted to speak to Ms H. Mr Boucaut said the only way this could be achieved was with the Court’s imprimatur. Mr Boucaut said that Mr C may have asked if he could speak to Ms H privately in the cells and if he had he would have said he would not be allowed to. Mr Boucaut said he was not 100 per cent sure but it is his recollection that the applicants had an opportunity to speak to each other during the conference.
Mr Boucaut said he proposed the joint conference because Mr C wanted to speak to Ms H. He did not remember Mr C asking for more time to consider his position or intimating that he was not guilty of any of the charges.[45] He said he would not have said to Mr C that the trial should not go on and that they must plead guilty to finalise the case on the day. He did not recall Mr Tothill saying that he would have to walk out if the case was not sorted out.
[45] T 143.
Mr Boucaut said that his practice is such that if there had been a request for time overnight he would have asked the Court for more time.
Mr Boucaut was asked in cross-examination whether he told Mr C that if they did not resolve the matter before the end of the voir dire all bets are likely to be off. Mr Boucaut does not remember saying that. He did recall that the prosecution “were playing hard ball in the sense that there wasn’t much latitude being extended to [Mr C]”.
Mr Boucaut was asked whether he advised Mr C that the Director of Public Prosecutions would lay other charges. Mr Boucaut said he could not remember the details but he had in the back of his mind that if there was going to be a trial they would run the whole lot and any suggestion offered by counsel for the prosecution that they would not be proceeding with some of the charges would go out the window.
Mr Boucaut denied that he suggested the ‘in Court apology’ following the reading of the victim impact statements, as alleged by Mr C. He said that Mr C raised the topic of an apology and that Mr C wanted to apologise.[46]
[46] T 149.
I accept Mr Boucaut’s evidence.
Mr Sale’s evidence
Mr Sale confirmed he represented Ms H in 2002 and that he engaged Mr Tothill as counsel. At that time, Mr Sale was a consultant for George Mancini and Co. Mr Sale deposed in his affidavit that he is unable to recall the precise details of the matter and the recall he does have which is independent of the documents provided to him by Mr Mancini is mainly in the form of impressions. Mr Sale deposes that the George Mancini and Co file concerning Ms H has been destroyed and the documents provided by Mr Mancini are printouts from the firm’s computer system. Copies of these printouts are exhibit BJS1 to Mr Sale’s affidavit.
Mr Sale’s evidence was that he did not at any time tell Ms H that she had to plead guilty nor did he have any concern that the pleas she entered were involuntary or that she did not understand the nature of the pleas she was entering.
Mr Sale said that Ms H did not appear confused as to her instructions and that neither of the applicants appeared or complained of feeling pressured into pleading to count 2 that he remembers. Mr Sale did not recall being in attendance on 6 May 2002 when Mr Tothill was speaking with Ms H about entering pleas but suspected he would have been.
Mr Sale said that it was his recollection, by reference to his file note dated 9 May 2002 (part of exhibit BJS1 to his affidavit), that Mr Tothill reminded Ms H that she needed to turn her mind to giving instructions in detail about what happened in each of the counts. He recalled that he expressed dissatisfaction with the detail of her instructions he had received so far and that he and Mr Tothill advised Ms H of their concern about the influence they saw Mr C having on her instructions. Mr Tothill suggested to Ms H that there was a lot she was not telling them about the allegations and Mr C. Mr Sale confirmed that he and Mr Tothill tried to impress upon Ms H on a number of occasions how serious the matter was and the need for her to give instructions.
Mr Sale said it was not his recollection that Ms H was adamant she did not want to plead guilty. He could not remember getting instructions prior to the joint conference regarding the entering of pleas. Mr Sale said that whilst he did not recall what the individual participants said in the joint conference, it would be an extraordinary thing for counsel to say he would walk out, that the trial had to finish or at least some matters had to resolve, and, if it had been said, he said he would remember it.
Mr Sale’s evidence was that the applicants were not permitted to discuss the matter on their own. He said it was his recollection that there was an undertaking that “the two accused were not to be permitted to discuss their versions of events together to avoid any possibility of collusion and so they weren’t to be permitted to be alone together just as they weren’t permitted to, for instance, one to ask the other ‘Well I am saying this, what do you say about that?’, in terms of specifics”.[47]
[47] T 160.
Mr Sale agreed that the purpose of the conference was to get a resolution by having “the two camps in the same room so the legal advisors could consult and see what either party was doing”.
Mr Sale said it was not his recollection that Ms H wanted more time to consider her position overnight and then give instructions. Mr Sale could not recall whether he was advised during or prior to the conference that Mr C was going to give evidence against Ms H. He did not recall Ms H saying she wanted to speak to the Judge during the joint conference. It was his recollection that Ms H was keen to know what Mr C was doing and that he may not have sought her permission to agree to the joint conference.
Mr Sale could not recall how he received the apology referred to in his affidavit as being authored by Ms H. He clarified that it was his impression that Ms H was the author of the apology and it was not written by him. He was asked whether he asked Ms H whether it was her document. His answer was:[48]
If I were to then receive a document much like the apology we have which seems to have references to the matters which appear esoteric then I might not have asked the obvious question of [Ms H] ‘Is this document I have received which appears to contain details of your offending, appears to be in your voice,’ if I could put it that way, I may not have asked the obvious question ‘Is this indeed your document’.
[48] T 163.
Mr Sale deposed in his affidavit to having obtained a report from the psychologist, Allen Fugler, for use in sentencing. Exhibit BJS6 to his affidavit is a copy of a document that “sets out my advice and instructions concerning a discrepancy between Ms H’s version to Dr Fugler and her instructions which are explicitly referred to as being signed and attached to this document”. Mr Sale said, having read this document, he could not imagine a situation whereby Mr Tothill or he “could have continued to act if Ms H had not confirmed her instructions as to the truth of the allegations and her wish to maintain her pleas”.
Mr Sale said that although he did not have a recollection of drafting a document reflecting Ms H’s instructions, he is almost certain there was a similar document to Exhibit BJS6 to his affidavit prepared for the purpose of Ms H giving instructions for the entering of pleas on 21 May 2002. His practice at the time was to prepare a document similar to exhibit BJS6. Mr Sale said that he suspected the document would have been signed by Ms H in the cells, not during the joint conference.
It was put to Mr Sale that Ms H did not sign any document during the joint conference or at any time before entering her pleas. Mr Sale said that he did not have a recollection of seeing Ms H put pen to paper. However, in terms of the way he was trained and the way he practised, he could envisage no way Ms H would have entered her plea to such serious allegations without providing signed instructions that accorded with her plea.

I prefer Ms Telfer’s, Mr Dibden’s and Mr Boucaut’s evidence regarding the applicants being given the opportunity to speak privately during the joint conference. Ms Telfer’s evidence was that there were discussions between the prosecutors and counsel for the applicants regarding the possibility of a joint conference on 21 May. Her evidence was that the effect of the discussions was that the applicants wished to speak to one another before making any decisions about a plea proposal. Mr Dibden had a specific memory of this occurring and whilst Mr Boucaut was not 100 per cent sure, it was his recollection that the applicants had an opportunity to speak together. Mr Sale appeared to base his evidence on this topic from his reading of the transcript of the assurances not to allow collusion given by Mr Boucaut to Judge Muecke when he asked for the opportunity to convene the joint conference. Apart from Mr Sale’s evidence on this topic I accept his evidence.
Mr Tothill’s evidence
Mr Tothill represented Ms H as counsel in 2002 instructed by Mr Sale. Mr Tothill deposed in his affidavit to always seeing Ms H in the company of Mr Sale and that Mr Sale would take handwritten notes of the advice given and Ms H’s response to that advice. Mr Tothill stated that Mr Sale would always record the instructions given by Ms H. He deposed that the notes he made were returned with the brief following sentencing of Ms H in 2002. He has been informed by Mr Mancini that the original file, including his notes, has been destroyed.
Mr Tothill said that he did not at any time tell Ms H she had to plead guilty nor did he have any concern that the pleas she entered were involuntary or that she did not understand the nature of the pleas she was entering. He did not at any stage during the joint conference threaten to walk out on Ms H if she did not plead guilty.
Mr Tothill said he had no memory of Ms H’s assertion that he saw her on one occasion and arranged a telephone call between her and Mr C and he denied telling her she had to relay to Mr C that they had to plead guilty.
Mr Tothill said he viewed videos in around December 2001 at the Director of Public Prosecutions’ office. He said he had spoken to Ms H about the video but she did not see it until it was played in the courtroom. He was asked whether he was aware that she entered her plea to count 2 before seeing the video. He said he understood that she had seen the video before entering her plea.
He recalled a discussion with Ms H about the sound and quality of the video and matters to be raised with the detective through cross-examination regarding admissibility. He denied he told Ms H the video had been admitted into evidence.
He did not have an independent recollection of Mr Sale taking handwritten instructions on 6 May. He did recall Mr Sale writing in the cells during a conference with Ms H on 21 May. His recollection of 21 May was that there was a conference in court and they then went to the cells where a separate conversation took place between him, Mr Sale and Ms H. He then went and spoke with Mr C’s counsel and returned, at which time he believed signed written instructions were taken. He did not have any memory of her signing a document but said he would not have acted unless signed instructions were obtained.
Mr Tothill said the purpose of the conference was, from his point of view, so that Ms H, who did not appear to want to do anything to compromise Mr C’s position, could hear the proposition of settlement that was being put to Mr C by Mr Boucaut. He said he was not informed by Mr Boucaut that Mr C was going to give evidence against Ms H.
He said of his memory of the joint conference “most of what took place in the courtroom, I don’t have an independent recollection of. What I mainly recall is the conversations in the cells with [Ms H]”.[49]
[49] T 176.
Neither he nor Mr Sale told Ms H she would not have any more time to serve if she pleaded guilty. Mr Tothill agreed that, up until 21 August, Ms H wanted to continue pleading not guilty. He said it was his memory that, following the joint conference and the further discussion in the cells wherein he described the trial process, Ms H changed her position.
In response to questions about Ms H’s apology, Mr Tothill said he understood she authored it but did not write it. He said the impression he had was that it was written by someone in the prison.
Mr Tothill was cross-examined about the letter he wrote to the Director of Public Prosecutions dated 3 July 2014 stating that he recalled receiving a phone call during 2006 or 2007 from a person he believes may have been Geoffrey Glanville. Mr Tothill said he was asked during the phone call whether he would be prepared to say that Ms H was pressured into pleading guilty. Mr Tothill agreed this was the first time he had heard of Ms H’s assertion that she had been pressured into pleading guilty and he recalled the phone call after being asked by the prosecution whether the issue had been raised with him in the past.
I accept Mr Tothill’s evidence.
Analysis and findings
The solicitors and counsel all did their best to assist the Court given the passage of time. They all denied telling either Mr C or Ms H that they had to plead guilty. They all said they had no reason to think the pleas were involuntary, that they did not understand what they were pleading guilty to or that they were pleading guilty for any reason other than through consciousness of guilt.
They all said there was no request by the applicants for time to consider their positions overnight. Mr Boucaut said that had such a request been made he would have asked the Court for more time.
Mr C and Ms H argued that they were told they would get ‘time served’ or ‘not much more time’ if they pleaded guilty. Both counsel and both solicitors said they would never have said that given the seriousness of the charges. Further support for this is found in the letter from Mr Boucaut to Mr Dibden dated 5 November 2002 exhibited to the affidavit of Mr Dibden which stated “I have advised [Mr C] that he can expect quite a long time in gaol. He understands this”. Given the circumstances of the offending, that any counsel or solicitor would advise in this way is quite implausible.
I am satisfied the applicants knew the detail of the charges against them. Both were arraigned pursuant to Criminal Rule 10, both were represented by solicitor and counsel at arraignment, on 6 May and 21 May 2002, during sentencing submissions, at sentence and at the sentence appeal. Mr C’s spontaneous apology, the letter he wrote to Mr Dibden 17 October 2002 and the letter written by Mr Glanville indicate he knew very well the extent of the offending to which he admitted. Likewise, Ms H’s letter of apology referring to her remorse and promise never to do wrong again, as well as her admission to Dr Raeside that her offending reminded her of what she herself had suffered, indicate she well knew the nature and extent of what she had done.
I am satisfied, having regard to the whole of the evidence, that the video was viewed by the applicants before entering guilty pleas on 6 May 2002. The commencement of the trial was adjourned so that the video could be viewed by the applicants and for discussions to take place. Mr C conceded that he thinks he saw the video before pleading guilty on 6 May.
I am satisfied that instructions were obtained from each of the applicants by their respective legal advisors to enter pleas of guilty on 6 May and 21 May 2002.
I am satisfied that the applicants met with their respective legal advisors in the Sir Samuel Way building cells on the morning of 21 May.
I find the joint conference was arranged to facilitate the applicants’ desire to confer with one another and confirm their respective positions.
I am satisfied Mr Tothill did not threaten to walk out of the joint conference.
I am satisfied the applicants did not make any request for further time to consider their positions on 6 May or 21 May 2002.
There was no determination on the voir dire regarding the admissibility of the video. The video was admitted on the voir dire and viewed by the Court followed by a graphic description of what it depicted by the prosecutor. I am satisfied that both counsel and both solicitors would have advised the applicants along the line of the words used by Mr Dibden “If it stays in, you’re in serious trouble”. In my view, it is clear that the argument against admission of the video was not a strong one and, given it provided real evidence of the commission of the rape of V1, it was unlikely to be excluded in the exercise of any discretion under the principles in Bunning v Cross, should such a discretion have arisen.[50]
[50] Bunning v Cross (1978) 141 CLR 54.
It is undeniable that a defendant facing very serious criminal charges and deciding to plead guilty would feel stressed and under pressure. The High Court has held that the application of pressure by a legal practitioner is legitimate where it is in the defendant’s interests.[51]
[51] Meissner v The Queen (1995) 184 CLR 132 at 148-149.
I find Mr Boucaut was informed by the prosecutor on 16 May 2002 that upon Mr C entering guilty pleas to counts 1, 6, 8, 9 and 10, provided Ms H pleaded to the same charges, nolle prosequies would be entered to the remainder of the charges on the Information.
Mr Boucaut spoke about the prosecution not giving Mr C much latitude when asked about whether he told Mr C that if the matter did not resolve before the end of the voir dire all bets are likely to be off. The irresistible inference to be drawn from this is that the case against Mr C and Ms H was a strong one and there was not much, if any, latitude to be given.
I am satisfied there may have been a need to make decisions regarding proposals to resolve the matter which emanated from the prosecutor before the finalisation of the voir dire on 6 May and on 21 May 2002. In this regard, I am satisfied that had the applicants requested time to consider their positions their advisors would have tried to negotiate that for them. I find there was no pressure applied to the applicants by their advisors other than the pressure inherent in the giving and consideration of legal advice in criminal proceedings.
I have no doubt that, having viewed the video and having the benefit of legal advice on 6 May 2002 and legal advice during the joint conference on 21 May 2002, the applicants felt stressed and under pressure. This is inevitable. They were admitting to serious sexual offending against Ms H’s daughter and her nine year old grandniece. It is to be expected that the process of exercising free choice in the entering of an informed and deliberate plea is accompanied by angst and pressure. The more serious the offending, the greater the angst and pressure.
I am satisfied there was no advice given to the applicants to the effect they would serve no more time if they pleaded guilty. To assert otherwise is nonsense. The applicants had been sentenced to three years in Ms H’s case and two years and six months in Mr C’s case for the Victorian offence against an adult female. They pleaded to more serious offending in this State, involving gross breaches of trust, namely, two counts of sexual offending against Ms H’s daughter and four counts of sexual offending against a nine year old in their care. To paraphrase Mr Boucaut’s report to Mr Dibden, they “could expect a long time in gaol”.
Extension of time
The applicants have not, in my view, disclosed any satisfactory reason for the delay in pursuing their applications. As such, the question of whether an extension of time should be allowed is dependent upon a consideration of whether there would be a miscarriage of justice if no extension of time is granted.
Conclusion
None of the complaints made by the applicants are made out. Having regard to the three matters identified in R v Wilkes[52] to be considered in determining whether allowing the pleas to stand will constitute a miscarriage of justice:
·The applicants have failed to establish their legal advice was imprudent or inappropriate;
·They have failed to demonstrate that their pleas entered on 6 May and 21 May 2002 were not attributable to a consciousness of guilt; and
·The evidence before the Court demonstrates there is no question about the applicants’ guilt.
[52] R v Wilkes (2001) 122 A Crim R 310.
There has been no miscarriage of justice.
I would refuse to grant Mr C an extension of time to apply for permission to appeal and would dismiss the application.
I would refuse to grant Ms H an extension of time to apply for permission to appeal and would dismiss the application.