R v Douglass
[2004] VSC 376
•30 April 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1431 of 2003
| THE QUEEN |
| v |
| TERRENCE MAIN DOUGLASS |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 AND 23 APRIL 2004 | |
DATE OF RULING: | 30 APRIL 2004 | |
CASE MAY BE CITED AS: | R v DOUGLASS | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 376 | |
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Ruling – Guilty plea before jury – Verdict pronounced by jury – Plea in mitigation part heard – Application to withdraw guilty plea – Jury verdict no impediment to application which may be made at any time before sentence – Burden of persuasion on applicant – Analysis of factual circumstances – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr R. Gipp | Victoria Legal Aid |
HIS HONOUR:
On 20 April 2004 I refused an application by Terrence Douglass (the applicant) to withdraw a plea of guilty to murder. At that time I indicated I would give reasons for my decision at the time of passing sentence. These are those reasons.
On 18 November 2003, the applicant pleaded not guilty before a jury to one count of murder. On the morning of 19 November the request was made through his counsel, Mr Sean Grant, that the applicant should be rearraigned. On rearraignment the applicant changed his plea to one of guilty. Being in the charge of the jury it was necessary that he repeat his guilty plea before them. Thereafter the jury were directed to bring in a guilty verdict and did so.
The jury verdict of guilty was endorsed on the presentment by my Associate. A plea was commenced forthwith by counsel who tendered a neuropsychological assessment and a report of the visual condition of the applicant. The circumstances surrounding the applicant's guilty plea were outlined and the consequent sentencing benefits that should accrue to the applicant were emphasised.
The further plea hearing was then adjourned to 15 December in order that psychological and psychiatric reports could be obtained. On that date the applicant, through his counsel, formally admitted 26 prior convictions for dishonesty between May 1997 and May 1998. These included theft, obtaining property by deception, false pretences, forging and uttering, and using a false document to prejudice others. A number of these offences had attracted gaol sentences.
In the meantime, on 3 and 5 December, the applicant had been seen by a clinical psychologist, Mr Bernard Healey. On 15 December, Mr Healey's report was tendered as were other medical reports and a letter from the Australian Army with which the applicant had served in both part and full time capacities between 1966 and 1970.
The plea proceeded with Mr Grant outlining the applicant's personal history and physical disabilities.
The Crown indicated that it wished to take issue with a number of matters involving physical disabilities raised on behalf of the applicant, and foreshadowed calling a Dr Glen Howlett, a forensic medical officer attached to the Victorian Institute of Forensic Medicine. Three reports by that doctor were tendered. The plea hearing was further adjourned in order for the defence to obtain a psychiatric evaluation of the applicant and to have the opportunity to assess Dr Howlett's reports.
When this case was called on again on 25 March 2004, it was announced that the applicant wished to change his plea to one of not guilty. Quite appropriately Mr Grant stood aside and this application was conducted on Mr Douglass' behalf by Mr Gipp of counsel.
Before dealing in detail with this application it is pertinent to consider the threshold jurisdictional question of whether this Court has the power to grant leave to withdraw a plea of guilty after that plea has resulted in a formal jury verdict of guilty.
The power of an appellate court to set aside a conviction despite a plea of guilty cannot be doubted and the principles on which the Court will act have been enunciated in a number of cases. In Victoria the law in this area was referred to by Callaway JA (with whom Buchanan and Eames JJ.A agreed) in R v Coffey[1]. His Honour stated:
"The ground of appeal against conviction reflects a line of cases beginning with R. v. Forde [[1923] 2 K.B. 400], in which the judgment of the English Court of Criminal Appeal was delivered by Avory, J. His Lordship said [at 403]:
'A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged.'
Those alternatives have not, in this State, been regarded as exhaustive. The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice [Crimes Act 1958, s.568(1)]. The same view has been expressed in New South Wales [R. v. KCH (2001) 124 A.Crim.R. 233 at [32]]. The authorities are discussed in R. v. Tait [[1996] 1 V.R. 662 at 665-6], R. v. Parsons [[1998] 2 V.R. 478 at 482-3] and R. v. El-Kotob [(2002) 4 V.R. 546 at [78]-[89]]. There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty [R. v. Liberti (1991) 55 A.Crim.R. 120 at 122]."
[1](2003) 6 VR 538 at 545-6. Other examples include R v Vella (1984) 14 A Crim R 90; R v Kardogeros [1991] 1 VR 258; R v Seyfarth [1998] VSCA 27; R v Young [2002] VSCA 2; and R v Reed [2003] VSCA 95.
But what is the situation in a trial court in the circumstances I have outlined?
In R v Webb and Hay[2] the co-accused Webb had changed a plea of not guilty to one of guilty despite the avowed advice of counsel. Since the jury had been empanelled the accused Webb was rearraigned and a jury verdict of guilty was pronounced. Subsequently, the jury having been discharged, the accused sought leave to withdraw the plea of guilty. It is not necessary to detail the unusual circumstances in which that application came about. It is sufficient to note that it was ultimately granted principally on the basis that the applicant's will was overborne by threats he received in prison. In addressing the question of jurisdiction the trial judge, Debelle J, examined the scant authority in this area. The earliest case was Clouter v Heath[3]. In brief the facts were that the accused Clouter, who had been indicted for forgery, had initially changed his plea of not guilty to guilty and the verdict of guilty had been formally announced by the jury. Thereafter he had sought to change his plea on the basis that his involvement was limited to uttering the forged document. This was permitted and the same jury was directed to withdraw its verdict.
[2](1992) 64 A Crim R 38
[3](1859) 8 Cox CC 237
Next in sequence of the cases considered was S (an infant) v Recorder of Manchester[4] which dealt primarily with the circumstances in which a plea of guilty could be withdrawn in a court of summary jurisdiction.
[4][1971] AC 481
Nonetheless, passages from that judgment may be regarded as having relevance. Lord Reid (with whom Lord Guest agreed) stated[5]:
"It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise. I need only cite one early case as a rather extreme instance. In Clouter v Heath, two prisoners were indicted for forgery and pleaded not guilty. At an early stage in the trial Clouter changed his plea to guilty and was convicted by the jury. Then in the evidence against Heath facts came out to show that Clouter had pleaded guilty under a misapprehension and he was allowed to change his plea again to not guilty, the jury's verdict being withdrawn." This case has frequently been cited and never disapproved."
[5]at p.488
In the same case Lord Upjohn remarked[6]:
"In the High Court and quarter sessions it is clear that the Court is not functus officio after a plea of guilty or even a finding of guilty by a jury but an amended plea of guilty may be accepted until sentence has been passed for only then is the judgment of the Court complete." [Cases cited]
[6]at p.505
In the case of Drew[7] which involved (inter alia) charges of conspiracy to rob and robbery involving three accused, one of the accused, having changed his not guilty plea to one of guilty, sought to withdraw that guilty plea at a time following the formal jury verdict of guilty. The trial judge ruled that, in the circumstances of the jury verdict, he had no power to allow the change of plea. The English Court of Appeal held that such a discretion did exist. Lord Lane CJ in delivering the judgment of the Court put it this way[8]:
"There appears to this Court no greater difficulty in altering the record following a jury's verdict than doing so upon a change of plea in any other situation. The jury's verdict where, as here, it is entered upon direction of the judge, is essentially a formality. In our judgment logic and good sense dictate that the trial judge should have the same power to allow a change of plea even where the verdict of guilty has been returned formally by the jury. It will be a most unfortunate anomaly in the law were it otherwise. We have come to the conclusion that neither the authorities nor the intrinsic nature of a jury's verdict compel such an unsatisfactory result. Rather we are persuaded that the appellant's argument is well founded and supported by such authority as bears upon the point.
It accordingly follows that the trial judge was wrong in his ruling and that he should have recognised and exercised his discretion whether or not to allow the appellant to change his plea."
Later Lord Lane observed[9]:
"In our judgment only rarely would it be appropriate for the trial judge to exercise his undoubted discretion in favour of an accused person wishing to change an unequivocal plea of guilty to one of not guilty. Particularly this is so in cases where, as here, the accused had throughout been advised by experienced counsel and where, after full consultation with his counsel, he has already changed his plea to one of guilty at an earlier stage in the proceedings."
[7](1985) 81 Cr App R 190
[8]at p.198
[9]at p.199
As this cursory survey indicates the English line of authority squarely supports the legal capacity of the trial judge, in appropriate circumstances, to permit a change of plea from guilty to not guilty. Indeed, in Webb's case Debelle J concluded on this aspect[10]:
"As the Court of Appeal noted in Drew, logic and good sense dictate that the trial judge should have the power to allow a change of plea even where the verdict of guilty has been formally returned by a jury. To allow this power to the trial judge does not impair or in any adverse way affect the status of the verdict of the jury. Indeed the very fact that the accused must apply to change his plea and justify the application is to recognise the effect of the verdict. Furthermore, the interests of justice require that, in an appropriate case, an accused person should be permitted to withdraw a plea of guilty. The plea may be been entered through a mistake or misconception. The accused might not have been represented. I respectfully adopt the observations of Lord Morris in S (an infant) v Recorder of Manchester at 501:
'If, before the Court has completed its task in regard to the case, an application to withdraw the plea is made and if it is made for reasons which the Court deems valid and which perhaps it has previously had no opportunity of considering, is the Court powerless to accede to it? It would be lamentable if that were so. The Court might feel that having regard to the reasons advanced it would be wholly wrong to hold a person to some previous acknowledgment of guilt. The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But it may also be confessed. The court will, however, have great concern if any doubt exists as to whether a confession was intended or as to whether it ought really ever to have been made … It would be a grave defect in our law and system if there is some rule which thwarts the course which the interests of justice prompt'."
[10]at p.50-51
In R v Seyfarth[11] the Victorian Court of Appeal considered the issue in the context of an accused who had initially pleaded not guilty to counts of conspiracy to make false documents and conspiracy to use false documents but who later changed his plea on the second count to one of guilty. The Crown having announced that it would lead no evidence on the first count the jury, at the direction of the trial judge, returned verdicts of not guilty on that count and guilty on the count of conspiracy to use false documents. Two days later application was made to the trial judge for leave to change the guilty plea to one of not guilty. The Judge refused the application.
[11]Ibid
In the course of his judgment, Buchanan JA (with whom Brooking and Tadgell JJA agreed) commented[12]:
"There was a preliminary question as to whether the learned judge had the power to determine the application after the return of a verdict of guilty. His Honour held that he did have jurisdiction, applying the decision of Debelle J. in R v Webb and Hay (1992) 64 A Crim R. 38, which in turn applied English authorities, the most notable being S (an Infant) v Recorder of Manchester [1971] AC 481. See also De Kruiff v Smith [1971] VR 761 at pp.765-6."
[12]Para [7]
As this passage indicates, the power of the trial court to entertain such an application was not doubted by the appellate court.
The authorities which I have cited compel the view that the verdict of the jury, at least when such a verdict is formally directed upon a plea of guilty by an accused, does not preclude that accused from later seeking leave to withdraw that guilty plea. However, there is some divergence of opinion as to whether, if it can be said that a conviction has occurred, a trial judge has the power to entertain an application of this nature.
In R v Freer[13] McGregor J of the Supreme Court of the Australian Capital Territory took the view that a plea of guilty being made, followed by a jury's verdict, constituted a conviction after which no application for withdrawal of a guilty plea could be made. This proposition was doubted by Debelle J in Webb's case. Indeed his Honour placed the cut-off point as the time of sentence.[14] There is authority for this proposition in the remarks of Lord Upjohn to which I have previously referred.
[13](1979) 39 FLR 193
[14]Ibid, pp.49 and 50
Further, in De Kruiff v Smith[15] McInerney J, although dealing with the plea of guilty before a Magistrate, stated generally[16]:
"It is clear that a plea of guilty is a formal confession of the existence of every ingredient necessary to constitute the offence: [case cited] … The trend of more recent authorities is that until sentence has been pronounced, the court has the power to permit a plea of guilty to be withdrawn. The existence of such discretion is recognised in the decision of the Full Court in R v Tonks and Goss [1963] VR 121, by the Full Court of New South Wales in the case of R v Foley [1963] NSWR 1270, and very recently in the speech of Lord Upjohn in the House of Lords in the case of S (an infant) v Manchester City Recorder [1963] 2 All ER 1230 …"
[15][1971] VR 761 at 765-6
[16]p.765
Moreover, in Chow v DPP[17] Kirby P stated:
"The entitlement of a person who has pleaded guilty to withdraw such a plea before conviction (and even on appeal) at any time before final sentence is pronounced is not in doubt. [Cases cited] … It is within the discretion of the presiding judicial officer to decide whether a plea of guilty may be withdrawn. That discretion must be exercised judicially. If the plea has been entered as a result of a mistake or 'other circumstances affecting the integrity of the plea as an admission of guilt', courts will readily grant leave to withdraw the plea."
[17](1992) 28 NSWLR 539 at 599
Certainly it is arguable that a plea of guilty followed by a jury verdict of guilt and thereafter a remand in custody succeeded by at least a partial plea hearing constitutes a conviction.[18] Indeed the hearing of the plea is predicated upon an acceptance by the Court of the guilt of the prisoner. If it is accepted that a trial court cannot set aside a conviction then the matter could only be resolved by an appellate court. On the other hand if the determinative criterion for an application of this nature is the final sentencing then a trial judge has the relevant jurisdiction to adjudicate on the application.
[18]See discussion of what constitutes a conviction in Maxwell v R (1995) 184 CLR 501; Dawson and McHugh JJ 509-511; Toohey J 519-521; Gaudron and Gummow JJ 529-532.
It seems to me that the thrust of the authorities is that an application to change a plea from guilty to not guilty may be made up until the time of sentence. Some additional support for this approach may be found in s.572 of the Crimes Act 1958 which fixes the time for a convicted person to appeal against that conviction as "not later than fourteen days after he has been convicted and sentenced" (my emphasis).
Such an approach has the advantage of certainty. Further, any abuse of the process is likely to be rare given the onus borne by the applicant and the circumspect approach of the courts to these applications. (These are matters to which I shall refer shortly.) Moreover, it may be that the facts and circumstances giving rise to a potential miscarriage of justice will not emerge until the actual hearing of the plea in mitigation. Accordingly, I intend to proceed upon the basis that, sentence not having been pronounced, I have jurisdiction to grant leave to the applicant to withdraw his current plea of guilty.
The approach which is to be adopted by a Court determining this issue has been canvassed in a number of cases I have already cited. I will, however, refer briefly to some others.
In R v Middap[19], the Victorian Court of Criminal Appeal (Crockett, O'Bryan and Gray JJ) remarked:
"The only test which is to be applied is whether a miscarriage of justice, in the view of the judge would occur if the leave sought were denied the applicant. Each case must be examined on its own particular facts and merits and there is no question but that the judge has a discretion, indeed perhaps a wide discretion, to exercise in relation to the matter, which must be exercised judicially and having regard to the test …"
[19](1989) 43 A Crim R 362 at 364
In the New South Wales case R v Boag[20] Hunt CJ at CL stated:
[20](1994) 73 A Crim R 35
"A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by a fraud or threats or other impropriety, when he would not otherwise have pleaded guilty."
His Honour later stated:
"… there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilty."
McInerney and James JJ agreed in the judgment.
The authorities also indicate that the burden of persuasion rests upon the accused who seeks to change his plea.[21]
[21]See R v Webb and Hay (ibid) and cases cited therein and also R v Boag (ibid, p.37).
In the unreported case of R v Pinhassovitch (a decision of Phillips CJ, Crockett and O'Bryan JJ sitting as the Victorian Court of Criminal Appeal on 7 February 1994) the Court considered an application to set aside a conviction on appeal on the basis that the plea of guilty was the result of the duress of counsel. The Court stated[22]:
"The applicant carries the burden of persuading the Court that he has suffered a miscarriage of justice. The burden of doing so on the ground that he has entered a plea of guilty under the influence of duress exercised by his counsel is a particularly heavy one. And this is what the applicant has in essence asserted with regard to his senior counsel."
The Court ultimately held that the plea of guilty had been entered as a result of a free choice on the applicant's part.
[22]at pp.8-9
Later, in dealing with the second ground, namely that the facts could not support a conviction, the Court remarked[23]:
"Insofar as the making out of this ground would establish a relevant miscarriage of justice, the onus of showing that the admitted facts would not support a conviction of the applicant rests upon him. As we have said, consistently with authority, it is a heavy onus."[24]
[23]at p.14
[24]The application was refused; see also R v Vella (ibid, p.95).
Additionally, as Kirby P stated in R v Liberti[25]:
"For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence." {Cases cited]
[25](1991) 55 A Crim R 120 at 122
Bearing these authorities in mind, I turn to the facts.
The prelude to this application may be found in two letters written by Mr Douglass in March 2004. The first, dated 5 March and addressed to his solicitor, Mr Peter Harvey, was in these terms:
"I refer to a meeting I had with you in January 2004 and the discussion that took place between us regarding my changing of plea from Guilty to NOT Guilty. You expressed some reservation about this and your opinion was not to do it. I would remind you that my original plea was NOT Guilty and was only changed after the judge confused and pressured me into changing plea, I was not represented by council (sic) at this time.
I wish to change my plea and I require you to take all the steps necessary to achieve that goal.
I would like to know your response to this, and request your response in writing as a matter of urgency."
The second letter, dated 18 March 2004, stated:
"I, Terrence Douglass request Victoria Legal Aid to provide legal assistance for a change of plea application in the Supreme Court. The reasons why I want to change my plea because I am not guilty. On the day I entered my plea of guilty I was unrepresented and the judge said the trial will go on no matter what. I panicked, scared, frightened, did not know what to do. All those things bewildered by what the judge said he pressured me. Further, ethical standards is investigating a complaint by me against the police and Ian Crisp and Elizabeth Nicholls."
This assertion of judicial pressure was repeated by Mr Douglass when he gave evidence on this application. It does not accord with the facts. As the transcript reveals, the applicant terminated the services of his counsel on the morning of 18 November when the latter, quite properly, refused to read to the Court a letter penned by the applicant which counsel regarded as irrelevant to the trial proceedings. The letter was not tendered during this application but was the subject of evidence. It appears that at least part of that letter was devoted to allegations by the applicant that a former counsel (Mr Crisp) and instructing solicitor (Ms Nicholls) retained by him had somehow conspired to put together the hand-up brief against him.
There is no dispute on the evidence that the refusal by counsel to read that letter was the reason given to Mr Grant by the applicant for the termination of his services.
The sacking of Mr Grant followed a number of disruptions to this trial since its scheduled starting date of 10 November 2003.
(I interpolate that this commencement date was one with which Mr Douglass did not demur at mention hearings on 28 and 31 October 2003.)
Given the history of this matter including the fact that Mr Grant was ready to proceed and that two Chinese witnesses had to return to China on 21 November 2003, (a fact well known to the applicant) I was driven to the conclusion, which I enunciated, that the applicant was attempting to manipulate the Court to prevent his trial proceeding. Accordingly I directed that should Mr Grant's services remain terminated, the trial would proceed with the applicant appearing in person.
The events which followed are set out in the trial transcript and need not be detailed. It is sufficient to note that prior to the selection of the jury the applicant reinstated Mr Grant, and his instructing solicitor Mr Patrick Harvey. The applicant was arraigned and pleaded not guilty; Mr Harvey assisted him with his jury challenges and Mr Grant formally announced his appearance on the applicant's behalf.
When the Court adjourned at 4.00 p.m. the trial was set to proceed on the following day. I have already indicated what occurred on the morning of 19 November.
From the foregoing it is apparent that the applicant did not, as he asserted in his letters and evidence before this Court, change his plea to guilty on 18 November when he was unrepresented, or that he panicked under judicial pressure or the pressure of his solicitor Mr Harvey because he could not run the trial himself. It is also significant that in the correspondence it was never alleged that he was ill prepared to proceed with the trial.
The material before this Court reveals the unfortunate fact that, for whatever reason, the applicant has an extraordinary capacity for mendacity. Insofar as this application is concerned, wherever there is a conflict of evidence between his account of events and those of his various legal representatives, I unhesitatingly accept their version of events. Each was a credible and reliable witness and, in many instances, their recollections were supported by file notes and other documentation.
Although initially a client of Victoria Legal Aid, the applicant had private representation between August 2002, and October 2003. A recurring theme in the evidence of the applicant was the refusal throughout this period of his legal advisers (commencing with Mr Ian Crisp of counsel and his instructing solicitor Ms Elizabeth Nicholls) to provide him with a copy of the hand-up brief. This resulted, so it was alleged, in his failure to contest the committal proceedings held in March 2003. By contrast, the evidence of Mr Crisp was that the applicant sought to have the proceedings adjourned on becoming aware of the presence of the media. When this application was refused by the Magistrate the applicant, contrary to his barrister's advice, chose to proceed by way of hand-up brief. I accept that evidence. No sensible motive was advanced as to why the applicant's legal representatives would have withheld the hand-up brief and both legal practitioners denied ever being asked for a copy by Mr Douglass. Indeed, Mr Crisp assumed that the applicant had read the material because of his familiarity with the issues.
The evidence of Ms Nicholls was that the hand-up brief had been forwarded to a subsequent solicitor retained by the applicant, a Ms Margot Foster, in March 2003. Although she was described by the applicant as a long time friend, he asserted that she too had failed to provide him with a copy of the hand-up brief despite his requests. Significantly, Ms Foster was not called to give evidence. Nor was Mr David Bullard, a solicitor who had instructed Mr Brian Burke of counsel in October 2003, who had also, it was claimed, been asked for a copy of the hand-up brief.
I am quite unpersuaded that the applicant, who was experienced in the criminal courts and not adverse to asserting his rights, did not, or could not if he had desired, have access to the hand-up brief. I should add that it was further claimed by the applicant that the nature of the allegations against him were never explained to him by Mr Crisp and he was unaware that he had leave to cross-examine some of the prosecution witnesses. However, the evidence of Mr Patrick Harvey, a solicitor of over 22 years' experience with Victoria Legal Aid was that, as early as July and August 2002, he conferred with the applicant in Port Phillip Prison and not only explained the committal procedure but drafted a Form 8A notice seeking leave to cross-examine specified prosecution witnesses. Moreover, prior to the committal hearing in March 2003, Mr Crisp conferred with the applicant on at least two occasions at Port Phillip Prison. On one of those occasions he was accompanied by Ms Nicholls. Mr Crisp deposed to giving the applicant advice about the nature of the proceedings against him. In the result I totally reject the evidence of the applicant as to the circumstances surrounding the committal proceedings.
As I have already indicated, the applicant did not claim a lack of preparation for trial in his letters of March 2004 or at the pre-trial hearing on 31 October 2003, when the Court was informed that Mr Sean Grant, an experienced criminal barrister, had been briefed as counsel for the applicant.
The evidence indicates that Mr Grant, together with his instructing solicitor Mr Harvey, attended on the applicant at Port Phillip Prison on 5 November 2003. Because of the applicant's past history with legal representatives, Mr Harvey took thorough file notes of proceedings. In a conference lasting just over two hours Mr Grant first took the applicant through the chronology of events. He explained the items of evidence relied upon by the Crown to establish its circumstantial case against the applicant and that any defence required a reasonable hypothesis consistent with innocence. Mr Grant expressed the opinion, correctly in my view, that the Crown case against the applicant was a strong one.
The law relating to self-defence, provocation, and unlawful and dangerous act manslaughter was explained. To the assertion by the applicant that the next door neighbour was probably responsible for the murder, Mr Grant reiterated the strength of the circumstantial case with the likelihood of conviction if the case was defended on the basis that the applicant was not present when the victim was killed.
Amongst the material available to Mr Grant was a record of advice given to the applicant by his former counsel Mr Brian Burke that the Crown case was a cogent one and that consideration should be given to a plea of guilty with its associated sentencing discount. Mr Grant, acting on the basis the applicant was purportedly sight impaired, left him a document written in large print containing 10 or 11 important issues about which he needed the applicant's instructions. The applicant stated he would consider those points in conjunction with reading the material and it was arranged for counsel to attend within two days for further instruction. This evidence of Mr Grant, which I accept, was confirmed by Mr Harvey.
In the interim period, on the morning of 6 November, some 18 floppy disks containing the committal proceedings in a large font were placed in the applicant's prison property and he was notified of that fact by Mr Michael De Young another Victorian Legal Aid solicitor.
About 2.00 p.m. on 7 November, Mr Grant and Mr Harvey again visited the applicant. He had not accessed his disks claiming that there had been a "lock-down" on 6 November. No explanation was forthcoming as to the morning of 7 November. Further discussions ensued about the case but no further instructions were provided. The applicant assured counsel that he would read the material. The applicant had the opportunity to do so on 8 and 9 November, and offered no explanation for his claim that he had not availed himself of that opportunity. This is not surprising since he falsely claimed in evidence that he had not received the disks until 12 November.
On 10 November, this trial was scheduled to commence but the applicant alleged that he had had a fall in the prison van. A report from St. Vincent's Hospital noted no objective evidence of injury albeit the applicant claimed soft tissue injury. As a result of this episode the trial was adjourned to 12 November.
On 11 November, the applicant was still claiming not to have read the material provided and consequently over a six hour period Mr Grant, in the presence of Mr Harvey, read to the applicant all 51 statements from the brief. At the end of each statement Mr Grant outlined its significance in the Crown case. On 12 November, in accordance with the applicant's instructions, Mr Grant again sought an adjournment asserting the applicant's desire to read about 12 of the statements. An adjournment was granted to 14 November, and arrangements were made with prison authorities not only to have the applicant transferred expeditiously from the Court to the prison, but to facilitate his use of a computer in the prison library.
On 13 November, Mr Grant and Mr Harvey visited Port Phillip Prison at 10.30 a.m. They were informed that the applicant had had access to the disks from 1.30 p.m. to 4.00 p.m. the previous day. In conflict with this account, the applicant himself claimed problems with the computer and that he had only had the ability to read the statement of the deceased's sister. No confirmatory evidence was called. In any event the sister's statement, with its damning evidence about a pendant worn by the deceased and later given by the applicant to his new wife Bei Wang, was discussed by counsel and the strength of the Crown case was reiterated. Instructions were again sought as to whether, and on what basis, the trial should proceed.
In the event a voir dire was conducted on 14 November. In his evidence before me, the applicant agreed he was able to give Mr Grant instructions for this purpose.
On Monday 17 November, the Court did not sit and the ruling on the voir dire was delivered on the morning of 18 November. It follows that the applicant had from 15 to 17 November inclusive to read the 10 statements (his figure) he desired to revisit. According to his evidence he did not do so. His only explanation was: "I did try but it's very hard being in prison to access computers." Given the circumstances I have outlined I do not accept that evidence. The conduct of the applicant may be seen as part of an ongoing pattern of endeavouring to frustrate the trial process.
Indeed his assertion is contrary to the evidence of Mr Grant who had yet another lengthy conference with the applicant on 17 November. At that time the applicant claimed to have read 13 of the 18 floppy disks and stated he would read the balance that day. In the course of this conference Mr Grant discussed the possible rulings on the voir dire and reviewed the evidence in detail. He requested the applicant to indicate his defence and pointed out that if he was convicted at the end of the trial he might possibly receive a gaol sentence of 21 years.
After the ruling was given on 18 November, the applicant, through Mr Grant, requested a half hour adjournment. In discussions with his counsel, the applicant sought an explanation of the implications and ramifications of a guilty plea. This was provided together with a description of the plea material which would be presented to the Court. It was Mr Grant's opinion that after the ruling the applicant well understood the strength of the Crown case.
In the event, as I have indicated, Mr Grant's services were terminated at this point because of his refusal to read to the Court the letter containing disparaging comments about Mr Crisp and Ms Nicholls.
After Court on 18 November, the applicant having pleaded not guilty, Mr Grant, who had been reinstated, sought further instructions. He was told only: "I did not do it. I'm not guilty." Counsel indicated that he would test the Crown evidence but requested instructions as to any particular parts of witness statements the applicant wished to contest. The applicant was asked to consider this overnight as well as the probability that he would be convicted of murder given the strength of the Crown case. This conversation is again supported by Mr Harvey. It does not reveal the level of pressure deposed to by the applicant who also claimed he signed a document on the night of 18 November, in which he agreed to plead guilty. He asserted the document was not read to him and he did not really know what it contained. This evidence does not accord with the reality of the situation as revealed by the transcript of proceedings which records Mr Grant, on 19 November, informing the Court that the applicant, having been advised late on the previous afternoon about the strengths and weaknesses of the Crown case, had considered his position overnight.
In his evidence before this Court Mr Grant set out in detail the matters which, according to the applicant, had exercised his mind before reaching the decision. Ultimately he remarked: "The guilty plea is the way to go." Further, Mr Grant gave evidence of carefully explaining the issues to the applicant so as to make sure he was making an informed choice. A document was prepared by Mr Harvey in large script. It included the applicant's instructions that he wished to plead guilty and that he was aware of the implications of his decision. I am satisfied not only that it was read aloud by Mr Harvey to the applicant but that the applicant himself read it before appending his signature to it. I quote that document in full:
"I Terrence Main Douglass instruct my solicitor Mr P. Harvey and my barrister Mr Sean Grant that I am pleading guilty to the murder of Jia Hong Hu (otherwise known as Jenny).
Mr Grant and Mr Harvey have attended upon me at Port Phillip Prison for many hours over five visits since they took over the conduct of my case in early November 2003. Mr Grant has explained to me carefully and in detail the strength and weakness of the Crown case against me.
I fully understand that the case against me is an overwhelming strong case.
I have also been informed by Mr Grant the full benefits I will receive such as reduction in sentence if I plead guilty to murder.
After having the pros and cons of the Crown case explained to me and after careful and deliberate consideration and much though I instruct my legal advisers Mr Grant and Mr Harvey that I am pleading guilty to murder.
I fully understand the decision I am making and I make the decision to plead guilty to murder of my own free will.
I have had this document read out aloud to me by Mr Harvey and I have read it myself.
I agree with the contents of the document.
Sign: Douglass
Date: 19/11/03."
I accept that this document accurately encapsulates the applicant's instructions to his legal advisers and reinforces their view that the applicant, in pleading guilty, knew exactly what he was doing.
I should add that the cogency of the Crown case may be gauged by reference to my reasons for sentence.
Between the commencement of the plea on 19 November, and its continuation on 15 December, several significant and instructive events occurred. Mr Grant and Mr Harvey visited the applicant on 20 November when a personal history was obtained. The applicant also agreed to provide a letter containing his instructions as to what took place between he and the deceased on the long weekend of January 2002. Ultimately, he failed to do so.
As I have previously indicated, on 3 and 5 December, the applicant was seen by Mr Bernard Healey and a further history was obtained and psychological evaluation conducted.
In his evidence before this Court the applicant agreed that he was aware that each of these various conferences was for the purpose of presenting his plea. Indeed, the plea had continued on 15 December 2003. On none of these occasions did the applicant suggest that his plea of guilty was the result of pressure or a mistake or that it did not reflect the true situation.
The applicant also deposed that he gave Mr Harvey instructions in December, prior to the continuation of the plea, that he needed to change his plea to not guilty. He asserted that Mr Harvey had replied: "Look, you can't do it, Mr Justice Coldrey won't accept it …" This purported conversation was never put to Mr Harvey in cross-examination and the applicant, who was not shy at raising issues directly in Court, made no mention of it at the 15 December hearing. Indeed, the letter of the applicant dated 15 March 2004, alleges a conversation with Mr Harvey not in December 2003, but in January 2004. I do not accept that any such conversation ever occurred and I am satisfied it was not until March 2004, at a time when the applicant knew the adjourned plea hearing was listed for the 25th of that month, that any issue of a change of plea was raised.
In summary, I find that the applicant freely chose to plead guilty to murder, conscious of his own guilt and having been fully appraised by counsel on the legal and factual issues involved and having been in receipt of expert legal advice, properly tendered, as to the overwhelming nature of the prosecution case.
Accordingly, this application is refused.
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