R v Daing
[2015] VSC 307
•24 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0112
| THE QUEEN |
| v |
| ISAC AYOUL DAING |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21, 22 May 2015 |
DATE OF JUDGMENT: | 24 June 2015 |
CASE MAY BE CITED AS: | R v Daing |
MEDIUM NEUTRAL CITATION: | [2015] VSC 307 |
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CRIMINAL LAW – Murder – Application to change guilty plea to plea of not guilty – Accused to show a miscarriage of justice would occur were the change of plea not allowed – Accused failed to demonstrate a realistic possibility that he did not understand the nature of the charge or that he did not intend to plead guilty – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney SC | OPP |
| For the Accused | Ms S. Keating | Revill & Papa Lawyers |
HIS HONOUR:
Isac Daing is a 36 year old man of Sudanese descent. He is charged with the murder of his former partner, Maryanne Sikai, on 18 March 2014. It is alleged that he struck her over the head with a wooden chair, causing it to break, and then beat her to the head and body using pieces of the broken chair. She died shortly thereafter.
At the committal Mr Daing pleaded guilty to murder before Hardy M. He retracted that plea and pleaded not guilty in this court. The matter was listed for trial. During pre-trial argument on 5 February he changed his plea again and pleaded guilty to murder before Lasry J. He now applies for leave to change his plea a third time.
Background
It is not in dispute that Mr Daing caused his partner’s death. He wishes to contend that he did not intend to kill her or cause her really serious injury at the time that he carried out the causative acts.
One witness (Yimklan) described Mr Daing forcing Ms Sikai to the floor, picking up a wooden chair, raising it over his head and slamming it down onto her body, causing the chair to break. That witness describes the accused then picking up a piece of the broken chair and striking the deceased multiple times all over her body. The accused was said to have raised piece of wood over his head and swung it down repeatedly until Ms Sikai ceased movement. Another witness (Nguyen) gives a slightly different account, but describes the accused “smash(ing) the stool down with a lot of anger into Maryanne’s body”.
At autopsy, numerous blunt force injuries were observed to the head, neck, torso and limbs. The deceased sustained multiple skull and face fractures, including a fracture to the base of the skull. She sustained brain contusions, a subarachnoid haemorrhage and traumatic axonal injury, indicative of rotational movements of the head at the time of that injury. The basal skull fracture would have required severe impact. The deceased’s larynx was fractured and there were multiple bruises and lacerations to various parts of her body. Dr Glengarry (the Crown pathologist) is of the opinion there were at least four separate impact sites to the head and neck, at least two to the torso, at least eight to the arms and shoulders (some of which may be defensive injuries), and at least three to the legs. The cause of death was blunt force head injuries.
The accused was arrested and interviewed. He declined to answer questions about the fatal incident. The prosecution allege that the accused had earlier presented at the police station watchhouse and announced, “I have just killed my girlfriend”. He was asked whether he was serious and it is alleged he replied, “Yes, I am. I killed her with a piece of wood”. The accused was remanded in custody.
The committal
On 7 August 2014, the matter proceeded to committal. The accused was represented by Mr Backwell of counsel. The following account of events comes from evidence given by Mr Backwell before Lasry J in February 2015.[1] Mr Blackwell said he conferred with the accused for the first time in the cells for about 40 minutes on the morning of the committal. He said his client did not appear to require an interpreter. He advised his client that his offer to plead guilty to manslaughter had been rejected.[2] He then advised the accused of the defence pathologist’s opinion, his (Mr Blackwell’s) view of the strength of the prosecution case, and the intention element of murder. Mr Backwell stated that Mr Daing told him that he did not intend to kill the deceased and he (Mr Backwell) explained that an intention to cause really serious injury was also sufficient to sustain a charge of murder.[3] Mr Backwell advised the accused that it was his opinion that the prosecution would prove an intention to cause really serious injury. “He accepted my advice (and) … he said that he would plead guilty to murder”. Mr Backwell said that he explained the sentencing discount for an early plea. At no stage during the conference did he get any impression that the accused did not fully understand what was being discussed. Mr Backwell went to the court and advised the prosecution and the informant that his client would plead guilty to murder.
[1]Transcript of 5 February, pp 15-45.
[2]The accused’s solicitors had made an earlier offer of manslaughter.
[3]Mr Backwell said there was no need to discuss the other elements of murder as the accused had “admitted the killing”.
The pathologist was cross-examined briefly at the committal hearing and the balance of the brief was tendered. The deceased’s family then came into court. Hardy M commenced to administer the committal caution. He said to the accused, “Sir, you face one charge and that is a charge that you, at Parkville in the State of Victoria on 18 March this year, did murder Maryanne Sikai – do you understand this charge?”. The accused replied, “I just want to talk to my lawyer first”. Mr Backwell said[4] he approached the accused and the accused told him he did not want to plead guilty to murder. The accused apparently remained mute when his Honour pressed him on whether he understood the charge, and then he said, “Honour, I need a translator”.
[4]Transcript 5 February 2014, p 23.
There was then a discussion between Mr Backwell and his Honour during which Mr Backwell indicated that every conversation that he had held with his client had been satisfactorily conducted in English. Court was adjourned and Mr Backwell further conferred with his client in the cells. His instructor was also present. Mr Backwell said that his client asked for a quantification in years for the discount for pleading guilty. The accused told him that he did not need an interpreter. He said that he claimed to want one so that he could speak to Mr Backwell himself. Mr Backwell said that he was not prepared to quote years, but stated words to the effect, “The earlier the plea, the higher the discount”. Once again, according to Mr Backwell, his client indicated to him that he would plead guilty to murder and that he did not need an interpreter.
The accused and Mr Backwell returned to court. Mr Backwell advised the Magistrate that his client did not require an interpreter and that he had satisfied himself that the accused’s English was sufficient to understand the committal caution. That caution was administered again and the accused pleaded guilty.
Post committal directions
On 21 August 2014, a post committal directions hearing was adjourned, initially to 10 September and then to 24 September before Lasry J. At this hearing, the accused was represented by new solicitors. His Honour was advised that the matter was to proceed as a trial on the charge of murder. The accused was arraigned and pleaded not guilty to that charge. The defence indicated that it would apply to exclude from evidence at the trial the plea of guilty in the Magistrates’ Court. It is undisputed that the accused, upon arraignment, was entitled to change his plea.[5]
[5]R v Broadbent [1964] VR 733; R v D’Orta-Ekenaike (1998) 2 VR 140.
A further directions hearing was undertaken on 27 November 2014. Through his solicitor, the accused confirmed his intention to plead not guilty. The issue of the admissibility of the guilty plea in the Magistrates’ Court was set down for argument before Lasry J on 4 and 5 February 2015.
5 February 2015
On 5 February 2015, Mr Backwell was called by the prosecution, the accused having waived privilege. Mr Backwell provided the account that I have referred to in paragraphs [7] to [10] of these reasons. He stated that Mr Daing gave no indication of any difficulty in understanding him and he (Mr Backwell) had no difficulty in understanding Mr Daing.
After Mr Backwell’s evidence given on the morning of 5 February, the accused then commenced to give evidence. An interpreter was sworn, however, the accused gave the large majority of his evidence in English. He said he was born in South Sudan, went to Khartoum at about 11 years old, and to Egypt when he was 17. He did not have much education and no English education. He spoke Arabic only. He trained as an electrician and came to Australia in 2005. At that stage, he had no command of English. He learnt English from general conversations with friends and at his work (he worked as a security guard at various Magistrates’ Courts). He said he had about a month of English lessons. He was asked about his instructions to his solicitor. He said that he had instructed her that he had not intended to kill the lady and that was why he did not wish to plead guilty to murder. Insofar as Mr Backwell was concerned, he had not conferred with him prior to the morning of the committal and thought the conference that morning only lasted for 10 or 15 minutes. He said Mr Backwell did not explain the distinction between the elements of murder and manslaughter. He said he did not understand every word of Mr Backwell and that was why he requested an interpreter, and he said he did so before the committal started. He said he did not understand then that manslaughter was a lesser offence than murder. He said that he asked for a break to obtain a translator so that he could understand.
In the cells, he said Mr Backwell again emphasised the discount for pleading guilty to murder. He said Mr Backwell did not explain what murder meant. He said he felt panicked and under pressure. He felt scared. He said when he said, “Guilty to murder”, he meant to say “Guilty to manslaughter”. He then said he thought he was pleading guilty to manslaughter.
After the committal on 14 August, Mr Backwell conferred with the accused at the MRC. Mr Daing said he told Mr Backwell he was not happy – he did not mean to plead guilty to murder and was confused. On 18 August, Mr Daing had another prisoner compose a letter to his solicitors.[6] In that letter, he advised them solicitors that he no longer wished them to act. His reasons for doing so were stated in that letter to be:
… I believe you are not following my instructions, the service being provided is not satisfactory and I am not convinced you have my best interests at heart. I was under the impression that an interpreter would be provided, certain witnesses would be cross-examined at my committal … and I feel I am being pressured to plead guilty.
This letter was written by another prisoner on Mr Daing’s behalf. This completed the accused’s evidence-in-chief.
[6]This became Exhibit B on the 5 February 2015 hearing.
His Honour then raised with Mr Tyrell, the accused’s then counsel, a legal issue. In very short compass, his Honour remarked that the evidence of Mr Backwell was, in many respects, diametrically opposed to that of Mr Daing, and any resolution of that dispute may need to be carried out by the jury at trial. His Honour referred to Rustum[7] at paragraph [9] where Nettle JA observed that evidence of an earlier plea of guilty was potent evidence of guilt, and that that potency ought not be equated with prejudice. His Honour observed that his provisional view was that this was a jury issue and he expressed some concern about the accused being exposed to cross-examination on this pre-trial evidentiary issue. Mr Tyrrell determined to press on and the accused re-entered the witness box a few minutes before lunch.
[7]The Queen v Mohamed Rustum [2005] VSCA 142
I pause at this stage to observe that the accused’s position on this argument seemed to be:
(a)that, in the absence of an interpreter, he had not clearly understood all that occurred at the committal, particularly the distinction between murder and manslaughter; and
(b)he was pressured into pleading guilty to murder.
Mr Tinney SC, who prosecuted, cross-examined the accused for a few minutes in his characteristically acute forensic style. His cross-examination during that short period was confined to the accused’s capacity to understand the spoken English word. The hearing was adjourned until 2.15pm for further cross-examination.
At 2.15pm, the matter was stood down. At 2.58pm, the hearing resumed and the following exchange occurred:
HIS HONOUR: Yes, Mr Tyrrell.
MR TYRRELL: Your Honour, I thank you for the time and I appreciate that.
Your Honour, I inform you that Mr Daing has instructed me that he wishes to plead guilty to the charge of murder of Maryanne Sikai on 18 March 2014. He has signed a document witnessed by my instructor in relation to that with the interpreter present. As a result of my instructor and I going through all of the details over several conferences in the last couple of weeks, Mr Daing has come to that decision and I think it is appropriate that my learned friend ask Your Honour for him to be arraigned.
HIS HONOUR: Yes, thank you. Thank you very much, Mr Tyrrell. We will re‑arraign the accused, Mr Tinney?
MR TINNEY: Yes, Your Honour.
HIS HONOUR: Mr Daing, would you stand please.
The accused then pleaded guilty, for the second time, to the charge of murder. Mr Daing was remanded in custody to 10 April 2015 for plea and sentence.
The document referred to by Mr Tyrrell reads as follows:
I, Isac, Daing, following conference with my barrister Shane Tyrrell and my solicitor Caitlin Dwyer, withdraw my plea of not guilty to murder of Maryanne Sikai on 18 March 2014. I make the guilty plea in full understanding of the consequences of this guilty plea today, and make it of my own free will.
Signed
Isac Daing
The document was witnessed by Mr Tyrrell, Ms Dwyer and the interpreter.
This application
The accused contends on this application that on each occasion that he pleaded guilty his capacity to comprehend the advice he was given and to exercise rational decision-making capacity was compromised by:
(a)Post-traumatic Stress Disorder; and/or
(b)Post-traumatic Stress Disorder dissociative sub type.
The prosecution contend that the accused’s plea before Lasry J on 5 February was a full and complete acknowledgement of his guilt of the crime of murder.
Legal principles
(i)The accused bears the burden of establishing that leave should be granted.[8]
(ii)A court will act on a plea of guilty when it is entered in open court by a person who is…apparently of sound mind and understanding provided the plea is entered in the exercise of a free choice in the interests of the person making the plea.[9]
(iii)A person may plead guilty for reasons extending beyond a simple belief in his or her guilt. The avoidance of worry, inconvenience, expense or publicity may operate on that person’s mind. That person may plead guilty to attempt to attract a more lenient sentence or to protect his family or friends. Where a plea of guilty is entered upon grounds such as these it “nevertheless constitutes an admission of the elements of the offence and a conviction entered on the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where an accused did not understand the nature of the charge or did not intend to admit he (or she) was guilty of it”.[10]
(iv)The test for whether a judge should grant leave for an accused to change his or her plea from guilty to not guilty is whether a miscarriage of justice, in the view of the judge, would occur if the leave sought were denied the applicant.[11] Each case must be examined on its own facts.
(v)There have been certain judicial reservations expressed about this test.[12] The auxiliary verb ‘would’ has been thought by some to impose too strict a test and ‘might’ has been proposed as a more equitable substitution. The test thus modified would be: the plea will not be set aside unless it can be shown that a miscarriage of justice might occur if the leave sought were denied to the applicant. For my part, I consider this apparent tension is more illusory than real and arises from differing interpretations of the phrase ‘miscarriage of justice’. If a miscarriage of justice occurs at the pre-trial stage when there is a realistic possibility that the accused did not understand the nature of the charge or did not intend to admit that he was guilty of it (as I consider it does), then the practical difference in meaning between ‘would’ and ‘might’ becomes faint as the possibility otherwise expressed within the verb ‘might’ is expressed within in the phrase ‘miscarriage of justice’ regardless of which auxiliary verb precedes it. The chance or prospect lost must be realistic, however, and not fanciful or far-fetched.
[8]Boag (1994) 73 A Crim R 35 at 36 – 37; R v Kouroumalos [2000] NSWCCA 453; Marchando (2000) A Crim R 337 at 338[4].
[9]Meissner v R (1995) 184 CLR 132 at 141.
[10]Meissner v R ibid per Dawson J (in dissent but not on this point).
[11]Middap (1989) 43 A Crim R 362.
[12]McGuire v DPP [2001] VSC 11; Parsons (1997) 97 A Crim R 267
Evidence on the application
The prosecution called Mr Shane Tyrrell. The applicant waived client legal privilege.[13] Mr Tyrrell has been a criminal barrister for 14 years. He was briefed to appear for Mr Daing in October 2014. He conferred with the accused at the Metropolitan Remand Centre on 23 January 2015 for a period of about four hours. Also present were Caitlin Dwyer, solicitor, and Ms Yang, an interpreter. Mr Tyrrell was of the opinion that Mr Daing’s English was reasonable and the conference was conducted in English with resort to the interpreter when required. Mr Tyrrell said that he explained the element of murder to the accused in detail. He dwelt on the intention element and explained that that element would be satisfied either by proof of an intention to kill or by proof of an intention to cause really serious injury.
[13]Section 122(1) Evidence Act 2009.
Mr Tyrrell confirmed that he appeared in the proceedings before Lasry J on 4 and 5 February 2015. The focus of the hearing was to try to have excluded from the evidence to be led at trial, evidence of Mr Daing’s plea of guilty to murder entered in the Magistrates’ Court on 7 August 2014. He conferred again with the accused before, during and after court on 4 February. At that time he said the accused’s demeanour was quiet, respectful and understandably nervous. It was the same on the morning of 5 February. Mr Tyrrell then described the events of the morning session before Lasry J. I have set out these events where relevant in paragraphs [13]-[19] of these reasons. Mr Tyrrell said that after the court adjourned for the lunch break the accused indicated that he wished to speak to him in the cells. Mr Tyrrell sought and obtained Mr Tinney’s permission to do so.[14]
[14]It will be recalled that Mr Tinney’s cross-examination had commenced shortly before lunch.
Mr Tyrrell went to the cells with his solicitor and interpreter. He said he was with the accused for a considerable time. The accused asked him some questions as to sentencing. Mr Tyrrell said that he told the accused that ordinarily a sentence for murder after a plea of guilty would be less than after a contested trial. Mr Tyrrell said that he had already advised the accused in the long 23 January conference of his view of the strength of the prosecution case. At that conference the accused had informed him that he had not intended to kill the deceased and Mr Tyrrell had pointed out that an intention to cause really serious injury would be sufficient to sustain a conviction for murder. Mr Tyrrell said he went through this on several occasions during that earlier conference. He said these discussions were not renewed during the 5 February lunch time conference.
During this lunchtime conference, Mr Tyrrell said the accused was quietly spoken and respectful. It was made clear to the accused that any plea that he entered was his (the accused’s) decision.
I told him “It’s your decision. Whichever way you go I’ll support that”.
We were quiet for about 10 or 15 seconds as I remember and he said “I’ll plead guilty to murder.”
Mr Tyrrell said that he asked the accused if he was sure:
Is this what you want to do?
It was explained to him in his own language as well and then I said to him that a document will be prepared for him to sign to say he now wishes to plead guilty to murder….
I had him read the document.
I then explained to him again what it meant.
The document was signed by the accused, Mr Tyrrell, Caitlin Dwyer and Ms Yang (the interpreter). I have set out the terms of this document in paragraph [21] of these reasons.
Mr Tyrrell then went on to recount the re-arraignment of his client. I have referred to these events at paragraph [20]. Mr Tyrrell said that during this lunchtime conference he had not noticed anything unusual, different or strange in his client’s demeanour. After the accused was arraigned he again spoke to his client in the cells. Ms Dwyer and Ms Yang were present. The accused seemed relaxed with his decision.
In cross-examination, Mr Tyrrell said that at the 23 January 2015 conference Mr Daing’s instructions to plead not guilty were clear. He agreed that Mr Backwell’s pre-committal holding cell conference with the accused was grossly inadequate for a murder committal. He also agreed that when the accused asked for a translator at the committal (see paragraph [8]) that should have raised a red flag with Mr Backwell. Mr Tyrrell agreed that at lunchtime on 5 February the accused was in cross-examination and had just, effectively, been accused of lying. He accepted that this was a topic of conversation when he arrived at the cells and that he said words to the effect ‘Mr Tinney’s entitled to cross-examine you on that basis and I’m not in a position to talk to you about the evidence’. He said the accused did not seem under any more pressure than usual.
Mr Tyrrell accepted that the initial part of the conference was relatively brief. The legal team then left the cells and returned some time later. Mr Tyrrell did not dispute that it was at about 1.50pm. He then conferred with the accused for about an hour. It was put to Mr Tyrrell that after the pause of 10-15 seconds the accused (in relation to pleading guilty) said ‘OK let’s do it’. Mr Tyrrell accepted that this could have been said, although he did not have a note of it. He did have a note of ‘I’ll plead guilty to murder’. Ms Dwyer then asked ‘Is that of your own free will?’. Those words were interpreted to the accused. Mr Tyrrell said he was not aware of any PTSD diagnosis relating to the accused. He said he saw no indication that would alert him that the accused was not understanding what he was saying.
In re-examination, Mr Tyrrell said that given the accused had instructed him that Mr Backwell had not adequately explained the difference between murder and manslaughter, he (Mr Tyrrell) took care to make sure that the accused fully understood the distinction between these two crimes. Up until the time the accused pleaded guilty before Lasry J he estimated he had spent about six hours with the accused. The accused instructed him that at the committal proceedings he felt pressured by both Mr Backwell to plead guilty to murder and by the magistrate to plead ‘to something’. Mr Tyrrell said that he took care in his dealings with the accused to ensure that the accused fully understood what was being said. He took particular care when explaining the intention element of murder. He said that he believed that the accused had understood every word that he (Mr Tyrrell) had said to him.
Mr Daing then gave evidence. He had the assistance of an interpreter but the large majority of his evidence was by direct English answers to direct English questions.[15] He said that when he met Mr Backwell in the cells before the committal he was told the prosecution would not accept a guilty plea to manslaughter and that the option was to plead guilty to murder or to run a trial. He said he felt scared, nervous and sweated under his arms when Mr Backwell told him this. Mr Backwell told him “If you plead guilty today, you get a discount”. Mr Daing said that he asked Mr Backwell if the case could be adjourned but was told that could not be done. He said he felt he could not make a decision in the limited time available. It would enable him to calm down and think clearly. He then went into the courtroom. He again said he felt nervous and scared, more so than when he had been speaking to Mr Backwell. He felt that his mind had shut down and was blocked. He said that the magistrate pulled his glasses down, which made him more scared. He said he felt under pressure. He recalled then asking for a translator so that he could understand the caution which had been read to him. He said he needed to understand the meaning particularly of the word ‘murder’ in that caution. The case was stood down and he returned to the cells. Mr Backwell came down and the accused said he told him he needed an interpreter to have a full understanding of the murder words. When Mr Backwell told him an interpreter would not be available on that day he asked Mr Backwell to seek an adjournment. Mr Backwell kept talking to him but his mind was blocked. The last thing at that stage that Mr Daing says he said to Mr Backwell was to request that the case be adjourned. They then went back into court. The committal caution was read again. He pleaded guilty to murder. He was scared, nervous and sweating. He saw the family of the deceased and became more scared. He was taken back to the cells, had a drink of water and felt relief. He pleaded guilty because he was scared and nervous and just wanted to get out of court.
[15]That is with no input from the interpreter in either the question or the answer.
The accused recounted instructing new lawyers and he told them he wanted to plead not guilty to murder He recalled the long conference with Mr Tyrrell. The accused said that at the end of that conference there were a lot of things he did not understand. He said that when he was called to give evidence before Lasry J on 5 February 2014 he felt pressure, was scared, sweating and nervous. When the judge addressed him personally this increased these feelings. When Mr Tinney called him a liar he became even more scared, nervous and sweating. At the luncheon adjournment he made a sign to his legal team to indicate he wished to speak to them.
In the cells he felt better and relieved. He asked why Mr Tyrrell did not help him out when Mr Tinney called him a liar. Mr Tyrrell said he could not help him over that. Mr Tyrrell said “If you plead guilty today you’re still entitled to a discount”. He said he went back to feeling nervous again. The legal team left and then came back. They said the same thing – the victim has too many injuries and if you plead today you still get a discount. His mind blocked and no words could come out of his mouth. They asked him at the end of that conference if he was going to plead guilty to murder and he replied “Let’s do it”. He said that because he was scared and his mind was blocked. He said those words to get relief from his being scared. After when he relaxed, he realised that he should not have pleaded guilty because he does not believe that he murdered the deceased.
In cross-examination, he accepted that he had not used an interpreter in any of his dealings with lawyers before the committal and the first time he raised the issue of an interpreter was before the committal magistrate. He agreed he was disappointed when told by Mr Backwell that his manslaughter offer had been rejected. He said he asked Mr Backwell what murder was and Mr Backwell explained it but he (the accused) did not get it. He said he pleaded guilty in the Magistrates’ Court because he was scared.
Mr Tinney then turned to the hearing before Lasry J. Mr Daing agreed that he had understood everything that was explained to him by Mr Tyrrell at the long 23 January conference except the meaning of the concept of murder. He told Mr Tyrrell that he did not get it. Mr Tyrrell told him that the case for murder was strong. Mr Daing was reminded of the evidence he had given before Lasry J. He agreed that he had told the court on that day that he had intended to say guilty to manslaughter in the Magistrates’ Court and that is what he thought he was doing on that day. He said he still thought that. He said that in the cells over the lunch break Mr Tyrrell was talking to him but his mind was blocked. He agreed that Mr Tyrrell’s evidence in relation to that lunchtime conference was correct. When pressed, the accused said that his mind was blocked and that he could not remember saying to Mr Tyrrell that he will plead guilty to murder. There were some words in the written instructions to plead guilty that he did not understand. Back in court, when the judge’s associate read out the charge, he was scared, nervous and sweating under the arms and ‘just wanted to get out of court’. He now does not know whether he understood exactly what he was doing when he pleaded guilty. He could not remember whether he complained to his legal team after court. Both times he pleaded guilty because he was scared. There was effectively no re-examination.
The accused called Mr Michael Crewdson, a clinical and forensic psychologist. His report, dated 7 May 2015, was tendered by the accused. Mr Crewdson had been provided with the transcripts of the proceedings before Lasry J. Over four prison visits Mr Crewdson spent approximately 12 hours with Mr Daing, mostly with an interpreter present. I do not propose to recount Mr Crewdson’s evidence in its entirety but shall refer to certain passages.
In answer to specific questions Mr Crewdson provided the following opinions, which I have paraphrased:
1 & 2.Mr Daing suffers from a chronic and sustained degree of Post-Traumatic Stress Disorder (PTSD). The precipitating events were witnessing the murder of his father as an eight year old and an attack upon him in a refugee camp. Mr Crewdson stated, “(t)he possibility that he was in a transient dissociative state on each occasion when facing the moment of pleading should be given consideration”.
3.The symptoms of the diagnosis are essentially those of an anxiety disorder with psychosocial complications and the “high probability of some degree of dissociative processes”.
4.In times of stress he experiences high levels of anxiety of an acute transient nature; disturbance of general calm rational and reasoned intellectual functioning and “dissociative phenomena”.
5 & 6.The degree of stress inherent in a situation is likely to affect the severity of the PTSD symptoms. On the one hand the accused abhorred being labelled a murderer and yet twice he acceded to the proposition that he was guilty of murder. “An important question is whether this decision was made on rational grounds but was emotionally influenced by the factors already discussed and his desire to remove himself from extreme stress at any cost. Only later when the situational pressure had been removed did he have a full appreciation of what he had done.
Mr Crewdson concluded his report by saying that he could not provide a definitive opinion on the accused’s mental state at pertinent times. He offered relevant hypotheses and material of an educative nature for the consideration of the court.
In his oral evidence, Mr Crewdson said that the accused’s ability to comprehend information may be reduced by high levels of anxiety and arousal.[16] Given the accused’s history of traumatic events he was vulnerable in situations of stress to avoid negative feelings arising from pressure in court.[17] By the time Mr Crewdson gave evidence he had listened to the preceding evidence in the application. He considered that the inference was available that the accused did experience some high degree symptoms of PTSD when called upon to make his plea and further that the accused, whilst in that mental state, may have reasoned that a plea of guilty would provide an escape from the negative feelings of pressure that he was experiencing.
[16]Transcript of the current proceedings (T) 85; T 89.
[17]T 87; T 88.
In cross-examination, Mr Crewdson accepted that the major precipitating event in his diagnosis was the death of the accused’s father 28 years ago and that he was not aware of any other diagnosis of PTSD made in the intervening period. He accepted that someone suffering from PTSD might be perfectly capable of understanding the meaning of a plea of guilty to a charge of murder.[18] He said that if the accused were in some sort of dissociative state his ability to understand and comprehend may be reduced[19] but contended that even in the absence of a dissociative state, the presence of PTSD may by itself reduce an ability to understand and comprehend. In this case the accused’s abhorrence of being labelled a murderer (as a consequence of seeing his father murdered and the development of a related PTSD) may have led to a state of heightened arousal and a desire to navigate through a plea of guilty to a safe place. Mr Crewdson accepted that the proposition that on each occasion the accused was required to plead to the charge of murder he went into a dissociative state could be viewed as far-fetched. Another explanation, he accepted, was that he well understood the advice he had received, the sentencing benefit to a plea of guilty and he made a conscious, clear decision to plead guilty.
[18]T 121.
[19]T 122.
Analysis
This application raises two issues:
(a)Was the accused suffering from a PTSD dissociative sub-type at the time he entered his guilty plea before Lasry J on 5 February such as to produce a miscarriage of justice; and/or
(b)Was the accused suffering from PTSD at that time such as to produce a miscarriage of justice.
Dissociative state
I am comfortably satisfied that the accused was not in some type of dissociative state at the relevant time. Mr Crewdson postulated only the possibility of this occurring. In his report he contemplated “the possibility that the accused was in a transient dissociative state on each occasion when facing the moment of pleading guilty.” He raised this as a possibility that should be considered. This Court is always grateful for the assistance given it by experts of the standing of Mr Crewdson. Nevertheless, the double transient dissociative state hypothesis derives little support from the evidence. I regarded Mr Tyrrell as a highly impressive witness; thoughtful, measured and conscientious. His evidence, which I have reviewed at paragraphs [24] to [32], gave no hint of any potential dissociative state at any time on 5 February, and in my view evidenced powerfully the contrary. The accused was calm, seemingly engaged, and prepared to sign the plea acknowledgement. I consider it certain that had Mr Daing exhibited any signs of incomprehension or misunderstanding of events Mr Tyrrell and Ms Dwyer would not have proceeded to “sign up” the accused.
Similarly, although Mr Backwell has been the subject of some legitimate criticism for his late and brief committal conference with the accused, there was nothing in his evidence before Lasry J that even hinted at some form of dissociative state at the Committal hearing. A perusal of the transcript of the 5 February hearing, which it will be recalled focussed on the circumstances of the guilty plea at the committal, suggests strongly that the defence arguments (at that stage) were centred upon the lack of an interpreter, rather than any unusual psychological state.
Post-Traumatic Stress Disorder
As this hearing proceeded it seemed to me that the accused placed an increasing emphasis on PTSD and its potential to compromise the accused’s plea of guilty:
It is contended…that on the relevant occasions in the court process when the accused has entered a plea of guilty his capacity to comprehend advice he was given and to exercise rational decision making in accordance with his belief that he did not murder the deceased was compromised. This was the consequence of the likely operation of symptoms of (PTSD)…and less relevantly (PTSD) dissociative sub type.”
It is important to understand that proof of the mere existence of PTSD will provide an insufficient basis for the Court to exercise its discretion in the accused’s favour. The word ‘compromise’ is used loosely in my view by the accused in his submission. It is insufficient to show that the accused’s capacity to comprehend advice and make decisions was, in some way, and to some degree, adversely affected. What must be shown by the accused is a realistic prospect that “he did not understand the nature of the charge or that he did not intend to admit he was guilty of it.”
After making a large allowance for the fact that the accused was giving evidence in his second language and in a formal environment I am afraid that I was unimpressed by his evidence. It seemed to me that when pressed as to why he had pleaded guilty twice to the murder charge the accused resorted to asserting some variation of “I was scared, nervous, sweating under the arms and my mind was blocked.” He provided this type of answer approximately fifteen times in evidence-in-chief and as many again in cross-examination. I regarded it as rote. Mr Tyrrell’s evidence as to what occurred during his long conference of 23 January went effectively unchallenged as did his evidence of the lunchtime cell conference of 5 February. On a number of occasions the accused asserted that, either at the committal or in conference with Mr Tyrrell post-committal, that he did not understand the meaning of the crime of murder. He said that when Mr Tyrrell explained the proofs involved with the charge of murder (specifically the intention element) he told Mr Tyrrell he did not understand it. I am comfortably satisfied that Mr Tyrrell did explain this element and I am equally comfortably satisfied the accused understood it. My impression of the accused as a witness is that he is quite an intelligent man. I am fortified in that impression by Mr Crewdson’s evidence to that effect.[20] It was never put to Mr Tyrrell that the accused expressed confusion to him over the intention element, and in fact Mr Tyrrell himself said in evidence that the accused instructed him in the long conference that his confusion about this element occurred when dealing with Mr Backwell at the Magistrates’ Court. I have earlier described Mr Tyrrell as a highly impressive witness and to the extent that his evidence is in conflict with the evidence of the accused, I accept Mr Tyrrell’s evidence.
[20]T 129.
Although it is not by any means determinative to the outcome of this application I also consider there is an illogicality to the accused’s assertions that his misunderstanding of the intention element of murder led him to mistakenly plead guilty. If Mr Daing genuinely misunderstood the element as requiring proof only of a specific intention to kill then logically that may well produce a mistaken plea, but that plea would be ‘not guilty’ as it would be entered without any consideration of the ‘really serious injury’ component of the element. I am unable to understand how, logically, this imperfect understanding of the element could produce a guilty plea. I should add that I do not accept Mr Daing’s assertion that he thought he was pleading guilty to manslaughter in the Magistrates’ Court.
I am satisfied on the basis of Mr Crewdson’s evidence that the accused suffers from some form of PTSD that has its origins in the murder of his father in Sudan when the accused was 8 years old. I am also satisfied that this event and its psychological sequelae explain the accused’s abhorrence of the label “murderer”. Mr Crewdson accepted in cross-examination that this abhorrence may have led to the accused changing his mind as to his plea:
But from a psychological perspective, one of the things that would change his mind even once he had got to the barrier is the fact that he would find the idea of being labelled or thought of as a murderer completely abhorrent to him.
Yes, from that point of view, I think you’re actually right.
I have reviewed the accused’s evidence before Lasry J at paragraphs [14] to [19]. I have no doubt he found the experience of giving evidence and being cross-examined (for a few minutes) an unpleasant one. I also have no doubt that he wished to talk to Mr Tyrrell about why no objection was taken to Mr Tinney’s accusation that he was a liar. In my view this is an example of clear thinking rather than the contrary. It is also an example of a witness who is prepared to stand up for himself, rather than one who is cowed into submission.
When Mr Tyrrell went with Ms Dwyer and the interpreter to that conference in the cells he knew the following:
(a)that his client had already pleaded guilty in the Magistrates’ Court;
(b)that his client had changed his plea to not guilty at a directions hearing;
(c)that his client was critical of his committal barrister and the lack of an interpreter at the committal hearing;
(d)that his client was maintaining that the confluence of pressure from his barrister and the committal magistrate had caused him to wrongly enter a guilty plea at that time; and
(e)that the exclusionary argument before Lasry J on 5 February was not going well, and his Honour had indicated a preliminary view adverse to the accused.
In my view, it is inconceivable that a barrister of Mr Tyrrell’s conscientiousness and caution would not absolutely satisfy himself of the genuineness of his client’s instructions before advising the court that his client wished to change his plea. Mr Tyrrell’s account of this two-part lunchtime conference was compelling and, as I have said, I accept it.
The accused proposed through Mr Crewdson that the change of plea before Lasry J represented a retreat by the accused, influenced by PTSD, to a ‘safe place’. Mr Crewdson’s evidence raised the theoretical possibilities that the accused’s capacity to comprehend information and process it may have been reduced by high levels of anxiety and arousal. I suspect this is the case to a greater or lesser degree in all persons, however I do accept that a person experiencing high level PTSD symptoms may well have a significantly reduced capacity to process and absorb information. Mr Crewdson went on to hypothesise that an inference was available that the pleas of guilty would provide an escape from the negative feelings of pressure created by the symptoms of PTSD and the prevailing circumstances. This hypothesis, regardless of its theoretical soundness, is, I consider, unsupported by the objective evidence. In my view the evidence of Mr Tyrrell alone is sufficient to dismiss it. In the cells the accused was quietly spoken and respectful, if nervous, and Mr Tyrrell noticed nothing different, unusual or strange in the accused’s demeanour. After the accused was further arraigned (and pleaded guilty) he seemed relaxed with his decision. When Mr Tyrrell’s evidence is combined with the fact and terms of the written instructions to plead guilty and the subsequent apparently unremarkable arraignment and plea of guilty I am very comfortably satisfied that at the time he pleaded guilty before Lasry J the accused’s plea was well considered and unequivocal.
Conclusion
The accused has failed to demonstrate that there is a realistic possibility that he did not understand the nature of the charge or that he did not intend to plead guilty to it before Lasry J on 5 February 2015. The application is therefore dismissed.
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