R v Hie

[2016] SADC 123

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v HIE

[2016] SADC 123

Reasons for Ruling of His Honour Judge Slattery

12 October 2016

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA

Application to withdraw plea of guilty.

The applicant sought leave to withdraw her guilty plea to one count of aggravated cause death by dangerous driving entered on day two of a trial by Judge alone. Consideration of the factual circumstances surrounding the entry of the guilty plea. Consideration of the principles governing the exercise of the Court's discretion on such an application.

Held:  Application refused.

Criminal Law Consolidation Act 1935 s 19A(1); Road Traffic Act 1961 s 47VA; Juries Act s 7(1); Evidence Act  s 34P; Bail Act s 11; District Court (Criminal) Rules 2014 R49(h), referred to.
R v Brooks and Childs [2006] SASC 247 (18 August 2006); R v Pugh [2005] SASC 427; R v Hura (2001) 121 A Crim R 472; R v Boag (1994) 73 A Crim R 35; Maxwell v The Queen (1996) 184 CLR 501; R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233; Hinton v O’Dea (1977) 16 SASR 234; Wilkes v The Queen (2001) 122 A Crim R 310, discussed.
R v Ferrer-Esis (1991) 55 A Crim R 231; R v Chiron [1980] 1 NSWLR 218; R v Murphy [1965] VR 187; R v Sagiv (1986) 22 A Crim R 73; R v Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995); Maxwell v The Queen (1996) 184 CLR 501; R v Davies (1993) 19 MVR 481; R v Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998); R v Favero [1999] NSWCCA 320; R v Liberti (1991) 55 A Crim R 120; R v Jupp (unreported, Court of Criminal Appeal, 23 November 1993); R v O’Neill [1979] 2 NSWLR 582; 1 A Crim R 59; R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310; R v Forde [1923] 2 KB 400, considered.

R v HIE
[2016] SADC 123

JUDGE SLATTERY

1. Kylie Anne Hie (Ms Hie) was charged on Information for arraignment on 1 December 2014 with the offence of Aggravated Cause Death by Dangerous Driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935.[1]

   [1]    19A—Causing death or harm by use of vehicle or vessel

2. The particulars of the offence read as follows:

   Kylie Anne Hie on 20^th day of November 2013 at Leawood Gardens, drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Charlotte May Hie.

   It is further alleged that Kylie Anne Hie drove the motor vehicle in contravention of s 47VA of the Road Traffic Act 1961, namely while having a prescribed drug, methylamphetamine present in her blood.

3. Ms Hie pleaded not guilty at arraignment on 1 December 2014.

4. By an election pursuant to s 7(1) of the Juries Act 1927 dated 10 April 2015, Ms Hie elected to be tried by Judge sitting alone without a jury.

5. The trial before me was due to commence on 16 August 2016. At the request of the parties, the commencement of the trial was delayed until 11.00am that day. At that time, I convened the Court and Ms Matteo with Mr Mulvihill appeared for the Prosecution. Ms Heather Stokes appeared for the accused, Ms Hie.

6. At the commencement of the hearing, I was informed by Ms Matteo, that there had been discussions between the parties and as a result of those discussions, it was necessary for her to raise with the Director of Public Prosecutions matters that were the subject of those discussions. Ms Matteo informed me that the Director would only be available during the luncheon adjournment due to other Court commitments and that she was confident that she could obtain instructions during that time. This Court could not sit after mid-afternoon and the matter was adjourned until 2.00pm. At that time, Ms Matteo informed me that she was unable to obtain the instructions that she required and it would not be until the following morning that she would have instructions. The matter was adjourned until Wednesday, 17 August 2016 at 9.30am.

7. On the following day Ms Matteo informed me that following her discussions with the Director the matter would proceed. Ms Hie was re-arraigned and pleaded not guilty. Ms Matteo then opened for the Prosecution. She informed me of a motor vehicle collision on 20 November 2013 on the down track of the South Eastern Freeway at Leawood Gardens. That suburb is at the western end of the Heysen Tunnels and is situate between Eagle on the Hill and Mount Osmond.

8. The allegations are that at the time of the collision, the accused was driving a white Toyota Hiace Van which collided with the rear of a B-Double semi-trailer which was travelling at a slow speed described as being significantly less than 60 km per hour. The B-Double semi‑trailer was situate in the left hand lane of the three lanes carrying traffic travelling in a westerly direction towards Adelaide on that part of the freeway. The vehicle driven by Ms Hie was also travelling in that same lane.

9. I was informed that the Prosecution alleges that the accused failed to judge or misjudged the time and space that she had to move out from behind the semi‑trailer and into the centre lane to her right. This failure allegedly caused the collision. Prior to the collision, a blue Toyota Rav 4 station wagon had been travelling in the centre lane adjacent to the accused’s vehicle and to the rear of the B-Double semi-trailer. The Prosecution allege that the accused drove up behind the semi-trailer quickly and she apprehended a gap in the centre lane ahead of the Toyota Rav 4 motor vehicle which would have enabled her to overtake the semi-trailer. The prosecution alleged that closed circuit television footage discloses that any attempt by Ms Hie to change lanes to the right and into the centre lane was an ambitious manoeuvre when it was understood that vehicles in that lane were travelling at or about the speed limit of 100km per hour on a sweeping left hand bend.

10. The freeway at that point consists of a long bend to the left or towards the west south-west after exiting the Heysen Tunnels.

11. Ms Matteo said that the case for the prosecution is that the front passenger side of Ms Hie’s vehicle impacted heavily with the rear right hand side of the second trailer of the B-Double semi-trailer. As a result, Ms Hie’s four year old daughter Charlotte who was in a child restraint seat positioned in the front seat of the van was tragically killed. The prosecution allege that the child restraint seat had been improperly fitted to the front passenger seat of the van. There is no rear seating in the van and so the only seat to which a child restraint seat could be fitted was the front passenger seat.

12. The Prosecution allege that following the initial critical impact, the van driven by Ms Hie rotated in a counter-clockwise fashion resulting in a secondary collision with the Toyota Rav 4 which had been travelling in the centre lane. That secondary collision allegedly knocked the van driven by Ms Hie back towards the direction of the semi-trailer and there was a further collision with the right hand side of the semi-trailer.

13. The Prosecution allege that there was another vehicle which was incidentally involved in the collision. This was a maroon coloured Hyundai Excel hatchback. It was travelling in the far right lane of the down track. As a result of the driver seeing the collision ahead, he took an avoidance manoeuvre which caused that vehicle to collide with the centre concrete barrier on the freeway.

14. I was informed that the charge against Ms Hie was aggravated on the basis that it was alleged that she was driving a motor vehicle in contravention of the Road Traffic Act 1961 because she had a prescribed drug in her system namely, methylamphetamine.

15. During her opening submissions, Ms Matteo tendered a series of documents by consent. The first, marked Exhibit P1A, was a large map of the aerial view of the South Eastern Freeway from the Mount Barker turnoff to the site of the collision. Exhibit P1B was a smaller aerial map of the view of the South Eastern Freeway from Mount Barker to the site. Exhibit P2 was an aerial view of the South Eastern Freeway at Leawood Gardens. It showed the exit from the Heysen Tunnels and a yellow pinpoint marker which contained the GPS coordinates for the position of the collision scene.

16. Exhibit P3 is a plan prepared by the Major Crash Investigation Unit (MCIU) which indicated various alleged impact points, tyre marks and debris which were to be the subject of the evidence of the investigating officer, Officer Jaensch. Exhibit P3 indicates by a reference to markings S1, S2 and T2 the alleged approximate point of the initial critical impact between the front passenger side of Ms Hie’s van and the rear driver’s side of the semi-trailer.

17. Exhibit P4 is a book of 25 photographs which were to be the subject of the evidence given by Officer Jaensch. Photograph 1 depicts a general view of the relevant part of the down track of the South Eastern Freeway from a point beyond the exit of the Heysen Tunnels. On photograph 1 there is a letter ‘B’ which indicate the alleged rest position of the van driven by Ms Hie. Photograph 2 indicates the alleged approximate position of the initial impact described as point ‘A1’ which is also disclosed on Exhibit P3.

18. Photographs 6 and 7 show different perspectives of the extent of the impact damage to the front passenger side of the van driven by Ms Hie. That photograph shows that this area of the van was completely crushed as a result of the impact. Photographs 16 and 17 show the Hyundai Excel vehicle, which was allegedly incidentally involved with the collision with the centre barrier, and photographs 18 to 22 depict the semi-trailer. Photographs 23 to 25 show the blue Toyota Rav 4 vehicle which had been travelling in the centre lane.

19. Exhibit P5 is a bundle of three photographs taken of stills of the CCTV footage on the South Eastern Freeway at the time of the collision. The first still image depicts the semi-trailer in the right foreground. The van driven by Ms Hie is clearly visible to the rear of the semi-trailer and the blue Toyota Rav 4 vehicle situate in the centre lane slightly ahead of the van driven by Ms Hie. It is apparent from the first photograph on Exhibit P5 that the Toyota Rav 4 vehicle is operating its headlights. The Prosecution case is that the van driven by Ms Hie is alleged to have commenced a manoeuvre to move into the centre lane of the down track of the freeway. This manoeuvre would require it to fit between the rear of the semi-trailer vehicle immediately in front of it and in front of the Toyota Rav 4 vehicle which is immediately adjacent to it and which is travelling at or about 100km per hour.

20. The second photograph of Exhibit P5 shows the alleged collision between the passenger side of the van driven by Ms Hie and the rear driver’s side section of the second trailer of the B-Double semi-trailer. The van alleged to be driven by Ms Hie is now shown to be positioned ahead of the blue Toyota Rav 4 in the second photograph. There is a one second time lapse between the first and second still photograph of Exhibit P5. This photograph discloses a clear view of the driver’s side of the van driven by Ms Hie.

21. The third still photograph of Exhibit P5 is taken one further second later and shows the alleged collision between the front of the vehicle driven by Ms Hie and the Toyota Rav 4. It also shows the approach of the maroon Hyundai vehicle which, allegedly as a result of the collision between the Toyota Rav 4 and the van driven by Ms Hie, ultimately comes into collision with the centre barrier.

22. Ms Matteo informed the Court that the Prosecution case on Ms Hie’s manner of driving was based in part upon statements allegedly made by Ms Hie to a nurse who had attended to her at the Emergency Department of the Royal Adelaide Hospital following the collision, as well as statements made by her to the Police, who formally interviewed her about one week post collision. Ms Matteo alleged that the Prosecution could establish that Ms Hie had been in Mount Gambier attending a funeral on the day prior to the collision. She allegedly left Mount Gambier to travel back to Adelaide on that evening of Tuesday 19 November 2013 in the company of her sister and her then four year old child.

23. Ms Hie allegedly told the nurse at the RAH that she had stopped near Keith for a sleep and she repeated that claim to the investigating Police. Ms Hie also allegedly told the nurse that she felt fatigued whilst driving and about a disagreement she had with her sister which led to her ejecting her sister from the van somewhere around Tailem Bend. Inferentially, this event took place sometime between 5.00am and 6.00am on that day.

24. Another witness allegedly saw Ms Hie and her daughter at a service station in Tailem Bend at around 6.00 or 6.30am on the morning of Wednesday, 20 November 2013. Observations were made of Ms Hie’s daughter and that later Ms Hie was allegedly seen strapping her daughter into the child seat in the front of the van before heading off in the direction of Adelaide.

25. Ms Matteo informed the Court that other witnesses would be called in relation to the alleged movement and manner of driving of the accused’s van on the South Eastern Freeway from around Mount Barker. Although the Court file does not disclose the delivery of any s 34P Evidence Act notice in relation to the evidence about this driving, such evidence could only be used on a propensity basis. That is a matter to be resolved in the future.

26. The evidence of these witnesses was that over several separate stretches of the freeway, Ms Hie was allegedly observed to be driving in a manner which appeared to the other road users to be reckless and impatient. She was allegedly seen to be tailgating, undertaking (overtaking on the left) and occasionally drifting out of the lane of travel.

27. The Prosecution also intended to call evidence from the drivers of the other vehicles. The driver of the semi-trailer was a long haul truck driver of almost 30 years’ experience. At the time of the collision the semi-trailers were carrying a load of about 40 tonnes of timber being hauled by a Kenworth Prime Mover from Murray Bridge to Adelaide. The speed limit for those vehicles on that stretch of the road was 60km per hour and the driver had placed the truck into manual transmission at about Crafers and placed the truck in a particular gear so that by use of the engine brake, the truck was travelling at about 30km per hour. The weather conditions were cool and windy but with clear visibly. The truck driver observed the Toyota Rav 4 travelling about 150m behind but seconds later heard and felt a loud bang which was the collision of the van driven by Ms Hie with the rear right hand side of the second trailer of his semi-trailer. The truck driver saw the van driven by Ms Hie bounce off the rear trailer of the truck and there was obviously extensive damage to the front passenger side.

28. The driver of the Toyota Rav 4 was about to pass the truck whilst travelling in the middle lane and allegedly noticed the van driven by Ms Hie in her peripheral vision in the left lane. Her observation was that the van driven by Ms Hie was allegedly travelling at a speed greater than the Toyota Rav 4 which was slowed by the driver of that vehicle in the process of passing the truck. The driver of the Toyota Rav 4 was to be called to give evidence that she saw the van driven by Ms Hie allegedly make a sudden movement towards the centre lane as if attempting to squeeze into the gap between the rear of the truck and the front of her car. She then saw the van driven by Ms Hie become airborne forcing her over towards the right hand lane and then stop.

29. The driver of the maroon Hyundai Excel hatchback saw the collision, applied his brakes that locked up and his vehicle slid into the concrete barrier after the Toyota Rav 4 had swerved into his lane following the collision. The driver of the Hyundai had allegedly seen the white van driven by Ms Hie pass him as it travelled in the left lane after exiting the Heysen Tunnels. At the point that he saw the van driven by Ms Hie, the semi-trailer was allegedly between 50 and 100m ahead of the van driven by Ms Hie. At that time he was also aware of the Toyota Rav 4 in the centre lane which was situate about halfway between himself and the semi-trailer.

30. The Prosecution case was that Ms Hie attempted to squeeze her van into the gap which existed between the rear of the semi-trailer and the front of the Toyota Rav 4 vehicle. The driver of the Hyundai vehicle would be called to give evidence that he allegedly saw the van driven by Ms Hie make its move towards the right and the collision then occurred. The driver of the Hyundai allegedly saw Ms Hie appear to look to her right before executing that manoeuvre. This evidence was to be led on the question of the voluntary driving of Ms Hie and not, as might be contended on her behalf, that the driving was the product of a seizure or some other involuntary medical condition.

31. Ms Hie was interviewed by Police on 27 November 2013 and mostly she declined to answer the questions put to her by Police. She volunteered in that interview that ‘the doctors think that I might have had a seizure’. The Prosecution intended to call evidence from the Surgical Consultant who saw Ms Hie at the RAH in the period between 20 and 26 November 2013. Ms Hie was examined by members of the neurology team at the RAH and underwent EMG and MRI scans of her brain. Dr Dobbins, who is not a neurologist, expressed an opinion about Ms Hie having suffered from a seizure disorder generally. The Prosecution case was that there was no medical or physical evidence to indicate that Ms Hie had in fact suffered from a seizure at the time of the collision and absent a witness to an event of such a nature, that event is impossible to confirm one way or the other. Ms Hie suffered no epileptic or seizure type events or symptoms whilst she was in hospital.

32. Ms Matteo said that the Prosecution case was to allege that the voluntary act of driving on the part of Ms Hie could be established by the absence of an involuntary medical event, as well as by the presence of certain physical features of the collision which were indicative of Ms Hie purposely controlling the vehicle in its failed overtaking manoeuvre. The Prosecution relied upon the observations of the driver of Hyundai motor vehicle when he allegedly saw Ms Hie looking to the right. The Prosecution also relied upon what it contended was for Ms Hie to have consciously held a reasonably pronounced right turning and driving line on her approach towards the point of the collision. The Prosecution thirdly relied upon the concentration of damage of Ms Hie’s vehicle to the front passenger side which was consistent with a manoeuvre into the right hand lane.

33. For s 19A of the Criminal Law Consolidation Act, it was necessary for the Prosecution to prove beyond reasonable doubt that the act of driving was such that a reasonable person in the situation of Ms Hie would recognise that her manner of driving is dangerous in that it involved a risk of injury to others which exceeded the ordinary risks of the road and amounted to a real danger to the public. The Prosecution contended that the alleged overtaking manoeuvre in those circumstances was necessarily dangerous because of the combination of the amount and speed of traffic travelling in the freeway at that time occupying multiple lanes, the visible presence of the slower moving prime mover and semi-trailers in the left hand lane, the lack of any obstruction to the visibility ahead or to the side of the road ahead as Ms Hie approached the semi-trailer and the allegedly tight gap which presented itself between the front of the Toyota Rav 4 in the centre lane and the rear of the prime mover ahead of her. The Prosecution contended that this driving by Ms Hie was an appreciably risky driving manoeuvre in that any attempt to fit her vehicle into that particular space carried a high and obvious risk to others through collision. 

1. The Prosecution also contended that an alleged essential feature of the accused’s driving behaviour was the effect of the methylamphetamine which was operating upon her at the time of the collision. Blood analysis was made of Ms Hie at the RAH and that analysis showed the presence of methylamphetamine at a level of 0.34mg per litre of blood. There was also present an associated level of amphetamine and the metabolite of cannabis. The Prosecution intended to call evidence from Professor Jason White, the head of the School of Pharmacy and Medical Sciences at the University of South Australia. Professor White estimated that the concentration of methylamphetamine in Ms Hie’s blood at the time of the collision was likely to have been slightly above 0.34mg per litre and somewhere between 0.35-0.36mg per litre. Professor White opined that such a level of amphetamine is capable of producing adverse effects upon a person which include increased confidence and risk taking and increased arousal leading to agitation hyper-excitability, irrational thinking and paranoia. If those effects are present, driving performance would subsequently become impaired. This, the Prosecution contended, may explain why the accused undertook the driving manoeuvre which the Prosecution attributes to her and which involved the degree of misjudgement leading to the collision.

2. The Prosecution also intended to call evidence from family members of Ms Hie, and in particular her ex-partner, as to some telephone contact which occurred during the journey. The Prosecution asked for a view of the collision site and permission was granted. At the end of the Prosecution opening, and after some matters were raised in opening by Ms Stokes, arrangements were made to meet at Crafers and then to proceed to the collision site. Page 25 of the transcript from line 14 records the following exchanges between Bench and bar:

   HIS HONOUR:     Anything we need, the Exhibits?

   MS MATTEO:    I would invite your Honour to bring those Exhibits to the view. There will be a Police officer, Sergeant Liebich from the Major Crash Investigation Section coming on the view and I understand that the defendant (Hie) does not wish to attend.

   MS STOKES:      That’s correct.

   HIS HONOUR:     We will meet at Crafers at 11.30am.

   The view

3. At or about 11.30am on the same day, a view was held at near to the alleged approximate point of collision. Present at the view were counsel for the DPP and for Ms Hie as well as Ms Chesters, a solicitor assisting Ms Stokes for Ms Hie. Sergeant Liebich of the MCIU was present to assist the Court. During the course of the view, it became apparent that Ms Hie was present in the vicinity. Ms Hie was seen by me attending to an area outside of the truck stop bay on the side of the freeway that was adjacent to the impact site. It was apparent that she was standing on the far side of the safety railing in the vicinity of a tree to which appeared to have been attached a number of items. Other persons were present with Ms Hie at the time. Notwithstanding her presence in the vicinity of the place from which the view was taken, Ms Hie did not approach the participants in the view at any time and she remained in an area removed from that position. Following the view, it was agreed that the Court would reconvene at 12.15pm that day.

   After the view: a delay

4. At 12.15pm that day, the Court was requested to delay the recommencement of the hearing of the action. No particular reason was provided and the Court acceded to the request of the parties for a delay in the recommencement of the hearing. The Court reconvened at 12.29pm that day. At that time, the Court was informed by Ms Stokes as follows:[2]

   MS STOKES: I apologise for the delay but it has been beneficial. Obviously it has been very difficult for my client for a long time. She has now provided me with written instructions to change her plea. I will ask your Honour to have her re-arraigned and then we will talk about delays for reports and bail conditions. That may be appropriate.

   [2]    T27.2.

5. Ms Hie was then re-arraigned on the charge of Aggravated Cause Death by Dangerous Driving. She entered a plea of guilty. The allocutus was read. Ms Matteo then tendered an antecedent report dated 25 July 2016 which was received without objection notwithstanding that Ms Stokes’ instructing solicitors had not yet obtained full instructions on that antecedent report. I have received no indication subsequent to that time that the antecedent report is otherwise than completely accurate. Ms Stokes indicated that there would need to be a delay before sentencing submissions.

6. There was discussion about obtaining Victim Impact Statements and there was a request made for a delay in order for a psychological report to be obtained from a forensic psychologist. Ms Matteo for the Prosecution then made an application for a variation of the bail conditions, whereby Ms Hie would be prevented from driving a motor vehicle. It is accepted that under s 19A of the Criminal Law Consolidation Act the penalty for a first offence, that is an aggravated offence involving the use of a motor vehicle, includes disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the Court orders. Therefore, on her plea, Ms Hie was always facing a loss of licence for a period of a minimum of 10 years. The Prosecution relied upon s 11 of the Bail Act 1985[3] and in particular s 11(2)(vi), which allows a Court to impose conditions in relation to the bail about the conduct of Ms Hie that I consider should apply while Ms Hie is on bail. Such a condition has recently been granted by her Honour Judge Davison of this Court in the matter of R v Wells.[4]

   [3]    11—Conditions of bail

   (1)Subject to this Act, every grant of bail is subject to the following conditions:

   (a)a condition prohibiting the applicant from possessing a firearm, ammunition or any part of a firearm;

   (b)  a condition requiring the applicant to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by the bail authority, or a person or class of persons or body specified by the bail authority.

   (1a)         A bail authority may only vary or revoke the conditions imposed by subsection (1) if the bail authority is satisfied that—

   (a)there are cogent reasons to do so; and

   (b)  the possession of a firearm, ammunition or part of a firearm by the person to whom the bail agreement relates does not represent an undue risk to the safety of the public.

   (1b)         A bail authority that is a court can only be satisfied of the matters referred to in subsection (1a) by evidence given on oath.

   (1c)         If a bail authority varies or revokes a condition imposed by subsection (1), the bail authority must make a written record of the reasons for its decision.

   (1d)         Subject to this section, a bail authority may impose 1 or more of the conditions referred to in subsection (2).

   (2)The conditions that may be imposed in relation to the grant of bail are as follows:

   (a)that the applicant agree—

   (i)to reside at a specified address; or

   (ia) to reside at a specified address and to remain at that place of residence while on bail, not leaving it except for one of the following purposes:

   (A)remunerated employment; or

   (B)necessary medical or dental treatment for the applicant; or

   (C)averting or minimising a serious risk of death or injury (whether to the applicant or some other person); or

   (D)any other purpose approved by a community corrections officer; or

   (ii)  if there is a victim of the offence in respect of which the applicant has been charged—to comply with such conditions relating to the physical protection of the victim that the authority considers should apply to the applicant while on bail; or

   (iii)to be under the supervision of a community corrections officer and to obey the lawful directions of the officer; or

   (iv)to report to the police at a specified place and at specified times; or

   (v)to surrender any passport that the applicant may possess; or

   (vi)to comply with any other condition as to the applicant's conduct that the authority considers should apply while on bail;

   …

   [4] [2016] SADC 68.

7. Ms Stokes then made submissions on behalf of Ms Hie on this application that no such condition should be imposed but that Ms Hie should be subject to a condition of random urine analysis.

8. Prior to the time of making submissions Ms Stokes had spoken to Ms Hie in the Courtroom and then informed me that Ms Hie suffers from anxiety, her licence is important to her and that, near to the point of the view, there is a shrine created by Ms Hie which she needs to get to. Ms Stokes also pointed to the driving record of Ms Hie and the disqualification from driving suffered by Ms Hie as a result of orders of the Court in the past. Ms Stokes submitted that, on the basis of a need to protect the public, the best method for doing so was by a random urine analysis and not by withdrawing Ms Hie’s right to drive. This would prevent her from going to her daughter’s shrine unless someone took her there which may not always be possible. This is because Ms Hie’s family lives in Mount Gambier. No mention was made of Ms Hie’s sister whom I am told also lives in Adelaide.

9. Ms Stokes also informed the Court that she would be seeking permission from the funding section of the Legal Services Commission to obtain a report from a forensic psychologist, Mr Fugler. I then remanded the matter to 9.00am on the following day, Thursday, 18 August 2016 for delivery of my decision on the question of the bail conditions and to Wednesday, 12 October 2016 for the purpose of sentencing submissions.

   The oral application for permission to withdraw guilty plea

10. On the following day, Thursday, 18 August 2016, the Court was not able to convene until 9.16am. Ms Stokes informed me that Ms Hie was not present because she was still on her way to Court. At the time she was coming from the office of a psychologist. Ms Stokes informed me that Ms Hie wished to make an application to change her plea. Ms Stokes emphasised that this change of plea was not based on legal advice but based upon psychological evidence that Ms Hie , having been to the shrine (near to the scene of the collision), was not in a fit state of mind to make a sensible properly judged decision to plead guilty when she was re‑arraigned on 17 August 2016.

11. I then asked Ms Matteo for the Prosecution to express a view about the oral application. She informed me that she could express no view because she had not received a formal written application, she did not know about the grounds apart from what had been said by Ms Stokes and she was not aware of the evidence upon which the oral application was based. After some discussion, Ms Hie arrived at the Court and delivered a sealed envelope containing a letter from a Mr Richard Oborn, psychologist, dated that day. I then made orders for delivery of a formal application together with supporting affidavits for permission for Ms Hie to withdraw her guilty plea. The parties both agreed that I should deliver my judgment on the question of the amendment of the bail conditions.[5]

    [5] The terms are as follows: application by the Director for a variation of the conditions of bail to the effect that the prisoner is not permitted to drive a motor vehicle. On Wednesday 17 August 2016 the prisoner pleaded guilty to the charge of Aggravated Cause Death by Dangerous Driving in breach of s 19A(1) of the Criminal Law Consolidation Act 1935. The maximum penalty for this offence is imprisonment for life and on the facts of this case disqualification from holding or obtaining a drivers licence for 10 years or such longer period as the Court orders. The penalties prescribed by Parliament indicate very clearly that this is a serious offence. The consequences of these actions of the accused are unimaginably tragic. That statement underscores the seriousness that Parliament has made clear is attributable to such conduct. That being the case, it is also entirely consistent with the intention of Parliament that a prisoner on bail for such an offence should forfeit the otherwise basic right of a licenced driver to drive upon the road. Such a result is, in my view, the apotheosis of the intention of Parliament and is consistent with the often stated need in society to both protect other road users with the standard of driving as Parliament expects to be displayed at all times by every road user. I have taken into account all of the submissions made to me but in the result I accede to the application of the Director and I order that the bail terms of the prisoner be amended by the insertion of a clause in the following terms: I will not drive a motor vehicle or occupy the driver’s seat of any motor vehicle for the duration of this bail agreement.

12. The fresh bail agreement was executed by Ms Hie.

13. Following the orders that I made, an application was lodged by Ms Hie in the following terms:

    The applicant Kylie Anne Hie applies to withdraw her plea of guilty (17.08.16) and proceed to a trial on a plea of not guilty.

    The applicant relies upon the following:-

    1.   The affidavit of Kylie Anne Hie affirmed 18.08.16;

    2.   The affidavit of Jean Chesters sworn 18.08.16;

    3.   The psychological report of Mr Richard Oborn dated 17.08.16.

14. The application was made pursuant to R49(h) of the District Court (Criminal) Rules 2014. The grounds of the application relied upon by Ms Hie were as follows:

    The applicant relies on the affidavit and psychological material indicating that she was not in an appropriate state of mind to make an informed decision at the time of changing her plea from not guilty to guilty and being re-arraigned.

15. Mr Mead appeared on behalf of Ms Hie in the application. I commenced hearing the application on 19 August 2016. At that time, Mr Mead informed me that Ms Hie relied upon a letter of Mr Richard Oborn of 17 August 2016 consisting of 2 pages, an affidavit of Ms Hie affirmed 18 August 2016 and an affidavit of Jean Evelyn Chesters sworn 18 August 2016. No affidavit had been prepared on behalf of Ms Stokes but Mr Mead sought leave (without objection) to call Ms Stokes in evidence to give viva voce evidence without the Prosecution having had the benefit of an affidavit from her.

16. At the outset I raised with the parties the question of the legal professional privilege belonging to Ms Hie that was impliedly or expressly waived by the filing of this material. My impression was that not much thought had been given to this issue. Eventually I was satisfied that instructions had been obtained and a conscious decision made by Ms Hie to waive the privilege belonging to her for the purposes of this application. I was also satisfied that this waiver was a full waiver and was not circumscribed in any way.

17. On that morning, the Court had received information that Mr Oborn was available to be examined by telephone. At that time, it became clear that Mr Oborn was relying upon notes in his file, a copy of which had not been available to the Prosecution. In those circumstances, very little assistance could be obtained from Mr Oborn’s evidence and an arrangement was made for Mr Oborn to attend to give evidence on the following Monday, 22 August 2016. In the meantime, a copy of the content of Mr Oborn’s file was received by the parties and by the Court.

18. Mr Mead then applied to read the affidavits of Ms Hie and Ms Chesters in support of the application. There was no objection to that application and again without objection, leave was sought and granted to the Prosecution to cross-examine each of Ms Hie, Ms Chesters and Mr Oborn.

    Mr Richard Oborn

19. Mr Oborn is a registered psychologist. He is not a forensic psychologist. He prepared a letter of 17 August 2016 concerning Ms Hie. He said it was not and could not purport to be a full psychological report upon Ms Hie. In the first paragraph of the letter, he states that he has been asked to provide an opinion on Ms Hie’s medical health status on 17 August 2016. He says he has based his opinion on a profile generated by a psychometric assessment completed on 28 July 2016, preliminary information provided by Ms Hie in the course of two appointments to date, his observations of Ms Hie over those two appointments and her manner in a telephone call to him at 9.43pm on 17 August 2016. The letter goes on to state that he had a brief conversation with Ms Stokes in which he was told of the events of 17 August 2016 and the levels of observable distress both at the Court and at the visit to the accident site. He then says:

    I understand that my opinion is to be utilised in relation to Ms Hie’s various pleadings to the charges made against her on 17 August 2016. I consent for this opinion to be used in this context alone without further appraisal.

20. Mr Oborn’s notes record that Ms Hie was referred to Mr Oborn by her General Practitioner Dr Stephen Klaric on 28 July 2016. This is incorrect. I am satisfied the first contact between Ms Hie and Mr Oborn occurred on 21 July 2016. His note of that consultation were summarised at the third page of his notes as follows:

    Ob: tall strongly built definite manner. Seemed to speak freely and volunteered information. Didn’t seem to hold back her personal history. Determined manner – won’t plead guilty as believes it wasn’t a driving dangerously. Clearly observable signs of sympathetic arousal. Clear in request – any way to avert having to sit through a restatement of events. Too much with her even now. 6 day trial!!

    Int: (1) listen to her account. (2) Phoned Lorraine Lim. No choice at trial. Don’t go will just postpone and lengthen delays.

21. In his letter of referral, Dr Klaric informs Mr Oborn that on the DASS21 Measure for depression, anxiety and stress, Ms Hie was at the extremely severe levels. He then says:

    My preference would be to start her on SSRI (an antidepressant) but she declines as she is trying to become pregnant. The current medical problems were described as anxiety with depression (2014), motor vehicle accident (November 2013), anxiety – panic attack insomnia epilepsy contraception (2013). A mental health care plan attached.

22. On a date which is not completely clear, Mr Oborn caused Ms Hie to undertake psychometric assessment. In his letter he said that the psychometric assessment indicated a very disturbed profile. However, that psychometric assessment was not completed. In his letter he says that without supporting initial structured information after gathering details, it is not possible to form a diagnosis of her mental health based upon DSM-V criteria. He also formed the view that: ‘for the same reason it is not possible at this time to separate causes or conditions arising from the trial process alone, her reaction to being confronted once more with the events of the accident during the trial, or the direct consequences of the accident itself. Clearly all will be significant contributors.’

23. Mr Oborn then concluded by saying that: ‘…all that could be said with safety at this time is that Ms Hie will reach criteria for a number of diagnostic categories which can confidently be expected to have a persistence of varying duration, and a worsening over time without therapeutic intervention.’ Matters of particular concern were indications of extremely high levels of suicidal ideation, depression, anxiety and thought disorder. Mr Oborn concluded that based on the above it is his clear view that Ms Hie could not be relied upon to be able to undertake clear and reasoned decision making on 17 August 2016. He expressed the view that he thought that her thinking and decision making was significantly impaired even in the course of two appointments prior to that day (those two appointments were 21 July 2016 and 8 August 2016). Importantly, at the end of his letter, Mr Oborn says as follows:

    I am not in a position to have a substantial opinion as to what was driving this impaired thinking and decision making, but hold little doubt that, in by far the major part, it is attributable the circumstances of the trial process and the events of the day.

1. It is apparent that, to an extent, this last paragraph of Mr Oborn’s letter is inconsistent with what goes before it. He says he is not in a position to have a substantial opinion as to what was driving the impaired thinking and decision making. This may be attributable to the fact that he has not had the opportunity to do a full assessment of Ms Hie. I will come back to this matter in due course.

2. Mr Oborn had a consultation for a period of about 1 hour with Ms Hie on 11 August 2016. His note set out the following observations:

   Ob: same direct manner. Apologetic but… nonplus. Immediately told me being in more trouble. Has been done for a series of counts of dealing. She said it was for small amounts and it was more a matter of “sharing”… not at all sure how all this will go. Very disenchanted with Heather Stokes not returning her calls so at a loss to know what will happen. Some… but clearly anxious. Big hope is not to go to jail. Very aware of bad (press). Very keen to make sure I knew she was being honest and upfront.

   LMP (1) listened and reflected

   (2) how I might be of help – can give my name to Heather Stokes

   - keep me informed if necessary.

3. It is an agreed fact in this matter that on 9 August 2016 Ms Hie was arrested and charged with 9 counts of Trafficking in a Controlled Drug. It is alleged in the Police apprehension report generated at the time of her arrest that Ms Hie trafficked, on eight separate occasions between March and August 2016, in methylamphetamine in amounts ranging between 14 and 28 grams. Ms Hie had been charged two days prior to seeing Mr Oborn on 11 August 2016. Ms Hie had allegedly committed these offence whilst on bail.

4. At the time that Mr Oborn saw Ms Hie on 21 July and 11 August 2016, he did not have the results of the psychometric testing. He also agreed that further testing would need to be done to form any definite conclusions and that the personality assessment inventory contained within this testing is but one aspect of matters that he would need to consider, although it was significant. He agreed that Ms Hie had a basic ability to undertake the test. He agreed that the assessment by the computer of the answers given by Ms Hie to the questionnaire which formed the basis of the psychometric test disclosed some concerns about the veracity or reliability of those answers. It was suggested that Ms Hie may not have answered the questionnaire in a completely forthright manner. This was one interpretation that was available. Mr Oborn did not see that as being any evidence of deception.

5. Ms Hie did not inform Mr Oborn that the presence of methylamphetamine in her system on the day of the accident formed part of the allegations against her. He confirmed that a very large part of her thought process was that she wanted to avoid the trial because she feared having to sit through a repetition of the events that led to her being on trial and that she could quite clearly, frankly and openly articulate that to him. She saw her position where the trial had been ‘foisted upon her’. Mr Oborn agreed in answer to one of my questions that the concept of a trial being ‘foisted upon her’ was slightly inconsistent with reality because it wasn’t her choice. He thought it was the fact that she wished the whole thing had never happened. She wanted to avoid going to trial.

6. Mr Oborn did not ever test Ms Hie about the fact that she did not want to take antidepressant medication. Mr Oborn diagnosed her as suffering from severe depression. The reason given by Ms Hie was that she was trying to become pregnant. He confirmed that Ms Hie emphasised to him on a number of occasions and in different ways that she was being open and upfront and honest with him. However, she did not tell him, for example, that the drug dealing charges related to her attempt to sell methylamphetamine to an undercover Police officer. She did not tell him that the allegations involved multiple incidents of attempting to sell methylamphetamine to that undercover Police officer; that the weight range of methylamphetamine under question was between 14 and 28 grams and that she had been arrested with her current partner. When asked whether this was inconsistent with her repeated suggestions that she was being open and upfront with him, Mr Oborn said there would be a positive and negative response to that question. He suggested that the terms of his referral were not about her criminal dealings or possible criminal dealings. I am unable to accept that response. Mr Oborn made a note of what he had been told by Ms Hie about the further trouble resulting from alleged drug charges. He took the trouble to make a note of that and objectively the inference arises that this conduct and its sequelae has some connection in some way to the conditions that she was suffering.

7. Mr Oborn did say that on a number of occasions Ms Hie confirmed to him that her big hope was to avoid the possibility of gaol. As will be seen, this is inconsistent with many of the answers given by Ms Hie in cross-examination.

8. After the meeting of 11 August, Mr Oborn next heard from Ms Hie on the evening of 17 August 2016. That is significant in a number of respects. Notwithstanding the several consultations between Mr Oborn and Ms Hie , (and his diagnosis of a disturbed person with potential suicidal ideation made separately from the phone calls to Dr Lim), no suggestion was made by him that cast doubt upon Ms Hie’s ability to attend Court, give instructions and to participate in the Court process. He did not see the need to deliver any letter of advice to Ms Hie, to Ms Hie’s solicitors or to the referring GP, Dr Klaric.

9. Mr Oborn said that when Ms Hie rang in the evening of 17 August, she was very agitated and he had some trouble making sense of what she was saying. He said she was confused, distressed and then said ‘she had to go up to look at the scene, she had become very upset and she couldn’t make up her mind on how to plead and she eventually pleaded guilty and that she wanted to change her plea’.[6] He agreed that she was contacting him about changing her plea although he really could not understand why because she was seeing him on a clinical matter but she was asking him about a legal procedural matter. Ms Hie asked him to contact Ms Stokes. He was questioned again about whether Ms Hie told him that she had to go up to look at the scene and he said his impression was she had no choice but to go up to the scene.[7] That was the clear impression that he had in his mind.

   [6]    T153.23-27.

   [7]    T154.24.

10. Ms Hie conveyed to him in that conversation that she could not make up her mind and had pleaded guilty. She told him about her discussions with solicitors but left it very unclear as to what the process was; he described it as an absurd phone call.[8]

    [8]    T155.15.

11. Mr Oborn accepted that any discussion about the death of Ms Hie’s child would induce anxiety. He said anxiety can have an effect upon a person’s ability to make a rational decision but that could be assuaged by a proper relationship with advisers including barristers and lawyers. Mr Oborn accepted that matters would not be able to proceed unless that could occur.

12. Mr Oborn agreed that he saw Ms Hie the following morning. He made some notes of his observations of her. They were as follows:

    Extremely tense. Attention variable but seemed to take in explanations. Very conscious of need to get to Court. When asked re suicidal ideations she said she had tried several times in the past but it hasn’t worked. Asked if she had such thoughts now. She said she didn’t want to live for shame of it all. Immediately facial changed. Look away and tears…

    (1)    Gave letter.

    (2)    Limited explanation of contents and why.

    (3)    Check re self-harm.

    (4)    Assured (her) re ongoing contact if wanted.

    (5)    Reassured re personal hopefulness.

13. Mr Oborn agreed that the opinion of 17 August was only generated following Ms Hie’s telephone call of the previous evening. He said he expressed his opinion in the background where he knew someone charged with a criminal offence at some stage had to make a decision about pleading guilty or not guilty. His understanding, which he gained in the earliest appointment with Ms Hie, was that she intended to plead not guilty because she did not believe she was driving dangerously. He also agreed that if he was to prepare a report in relation to Ms Hie, he would have required the completion of the psychometric testing and to have had further consultations with Ms Hie where he would have used a structured information format. He has a structured information gathering sheet but that is blank in Ms Hie’s file because it had never been completed. He is missing that piece of information and he needed to clarify a number of matters in relation to the psychometric assessment. He agreed that if he had had all of that information, he would have then been in a very strong position to have an opinion[9] and as a result his decision making in relation to Ms Hie was necessarily limited.[10] He also allowed for the possibility that with more information he might have come to a different opinion.[11]

    [9]    T167.1.

    [10]   T168.2.

    [11]   T168.25-28.

14. When Mr Oborn was asked whether he had allowed for the possibility that Ms Hie had made a free decision in entering her plea of guilty but subsequently had a change of heart, he said the predominant thought in his mind was from the earliest time he consulted with Ms Hie, she said she intended to plead not guilty. He emphasised she was ‘very very clear’ on that.[12] When Ms Hie contacted Mr Oborn on the evening of 17 August, he assumed that, having pleaded guilty, she really wanted to revert to what she had said to him earlier in the consultation. That was the basis of the formation of his views as reflected in the letter of 17 August 2016. He had no information that Ms Hie had received advice and information about the benefits or utility of pleading guilty but he knew she had made that decision for herself based upon information he received from Ms Stokes in the evening of 17 August.

    [12]   T169.6.

15. Mr Oborn reiterated in questions from me that his general impression was that Ms Hie had a firm belief that she was not driving dangerously but it was not his role to examine how she was driving.[13] That said, he did not think that the determination of Ms Hie to plead not guilty was a rational thought process.[14] He described her state of mind as being ‘too often when the truth, that when the facts of the matter won’t do, some other explanation must be found which might otherwise be called avoidance’ and that this might otherwise be called avoidance and denial.[15] Mr Oborn said he formed the view that having regard to what he was told by Ms Stokes on the evening on 17 August and the fact that Ms Hie was vacillating in her view as to whether to plead guilty or not guilty throughout 16 and 17 August, that Ms Hie was not in a fit position to make a clear and reasoned decision.[16] This was notwithstanding his point of view, that on a rational basis, he was at a loss to see how she could plead not guilty; I have not taken this view into account in my deliberations here.

    [13]   T170.10-31.

    [14]   T171.4.

    [15]   T171.1-14.

    [16]   T172.17.

16. Mr Oborn was then shown Exhibit HS1 (HS1) to the affidavit sworn by Ms Stokes. That document reads as follows:

    I Kylie instruct my lawyers that I will plead guilty to the charge of causing death by dangerous driving.

    In doing so I would be publicly (but not privately) acknowledging my conscious actions caused the accident and publicly not pursuing the possibility of an epileptic seizure. Privately of course I can and do have a different view.

    I will take this choice if the prosecution do not oppose a suspended sentence, but not otherwise.

    Ms Stokes has made it clear that it is my choice and I am under no pressure from her to make any particular decision, just to make a choice one way or the other.

    She has made it clear that the amphetamine in my blood is a major problem for me and to be balanced against the questions of a possible epileptic seizure.

    [signature]

17. Mr Oborn had not seen that document prior to giving evidence. He was informed that it was signed by Ms Hie on Tuesday 16 August, the day before he received the evening phone call. He was taken to the passages in HS1 where Ms Hie says she would take the choice to plead guilty if the Prosecution did not oppose a suspended sentence but not otherwise. At my insistence, Mr Oborn was then given background to the lead-up and signing of the document. This included that on many occasions, Ms Hie had conversations with her barrister, Ms Stokes, to both discuss the situation and to inform Ms Stokes of what decision she might make about her position. Those conversations occurred from time to time, as and when required by Ms Hie. She also had assistance from Ms Chesters, who was assisting Ms Stokes in the preparation of the case. Ms Hie took the opportunity to have discussions about a number of options before indicating an answer.

18. Mr Oborn was informed that in those conferences, and there were at least two or three conferences with Ms Stokes, there was an explanation given to Ms Hie of her position and the options available to her which, by her responses, indicated that Ms Hie understood what was being explained to her. She had the legal concepts explained to her and received advice about the nature and strength of the case against her, possible defences which she might mount to the charge, the Court process at trial, how to manage the stress of the trial and the potential benefits of entering a plea of guilty to the charge. He also learnt for the first time that Ms Hie was told throughout the course of these conferences that although she was anxious and upset about the subject matter relating to her daughter, she was able to sensibly and rationally respond to the questions that were asked of her by counsel and solicitors and she was able to indicate that she understood what was being put to her.

19. Mr Oborn was then asked whether he accepted that Ms Hie would have been in a position to indicate that she would take the choice of pleading guilty if the criterion of a suspended sentence was met. He thought that this position seemed fairly consistent with the view that she had expressed to him from the earliest time that she wanted to avoid the attendance of the trial.[17] Mr Oborn agreed that the choices presented in the penultimate paragraph on page 1 of HS1 is one which Ms Hie would have been capable of understanding.[18]

    [17]   T178.4-8.

    [18]   T178.13-25.

20. From a clinical basis, Mr Oborn thought that Ms Hie was able to make a clear decision on that day but that does not explain why she might have called him later the next evening.[19] That answer underscores some difficulties with Mr Oborn’s evidence. The document HS1 is Ms Hie’s signed instructions to solicitors that she was prepared to plead guilty on the basis that the Director would not oppose or make any submissions contrary to the possibility of a suspended sentence, which of course is always a matter for the sentencing Judge. That is the only basis upon which Ms Hie instructed her solicitors that she would plead guilty. She was in a position to make a decision about the conditions upon which she would plead guilty. She gave those instructions in the clear written terms of HS1. Mr Oborn then said that he was wondering about the basis for making that decision and he thought that in his limited dealings with Ms Hie, what she was doing was trying to avoid an emotional experience.[20] But Mr Oborn did agree that when Ms Hie came to sign HS1, she was capable of freely making that choice even though she was under the pressure of wishing to avoid the emotion of a trial. This was because she had the benefit of legal explanations, the benefit of several conferences with solicitors and counsel and that she was capable of understanding the choice that she made. Mr Oborn conceded that she still would have been capable of making a decision in those circumstances.[21] There were no indications that her understanding at that time was impaired.[22]

    [19]   T179.9.

    [20]   T180.12.

    [21]   T180.14-37.

    [22]   T181.11-17.

21. Mr Oborn was then shown Exhibit HS2 (HS2) to the affidavit of Ms Stokes. That document reads as follows:-

    I Kylie Hie instruct Ms Stokes I have now decided to plead guilty even though DPP won’t support or remain neutral on sentence. It’s my choice.

    [Signature]

22. Mr Oborn was informed that this document was signed after Ms Hie had been to the crash site and after she had said to one of her lawyers at the crash site ‘I killed my daughter and I should probably plead guilty to that, shouldn’t I?’ He was also asked to assume that the document HS2 was signed after further information was given to Ms Hie, further advice was given to her about her options in terms of pleading guilty or not guilty, after prevarication on her part and after she was informed again that whatever decision to be made it was hers and hers alone and that if she wanted to plead not guilty, the trial would continue. Mr Oborn was then asked whether the document set out a proposition which Ms Hie was capable of understanding. Mr Oborn thought that the statement made by Ms Hie at the scene was a pretty strong statement, one he thought would have been based upon a level of emotion driven thought process. He thought, on that basis, that he could not agree with the proposition that she could have freely given instructions about pleading guilty on clinical grounds. He thought that the experience she had that day would be an immensely confronting situation to find herself in and he would not think that rationality would be the ruling order of the day at that time.[23]

    [23]   T183.15-26.

23. Mr Oborn then attempted to describe what he thought might have been the factors operating upon the mind of Ms Hie at the time of her decision to plead guilty. He thought that any further legal argument would exacerbate her anxiety and raise the emotional level about (a) whether she understood or (b) could make a good decision. Mr Oborn introduced the concept of his doubt about good decision making even though he did not doubt that Ms Hie understood what she was doing. He agreed that she would have understood the proposition that was contained in HS2.[24] He said however, he would not necessarily think she was in the best position to make the best decision because of the emotional state that she was in.[25] He described his reason at T186 in the following way:

    XXN

    Q.Is what you’re telling his Honour that the way in which he should interpret that line of your opinion is that you are there saying that she could not be relied upon to be able to undertake the best decision.

    A.Yes, obviously I’m – I deal in words, like everyday stuff in words like ‘best’, but ‘best’ probably.

    Q.    But that’s not to say she couldn’t be relied upon to make a decision.

    A.I’m sorry, I’m getting a bit lost here, we seem to be repeating each other. So the question about understanding, I’m just mindful of a very emotionally-loaded period and what you’ve read out, to my ears, is a very emotionally-loaded reaction to finding herself at the crash site. So where I’m getting stuck is, was she capable of making a decision based on her understanding and that’s what I doubt. Am I missing something here? I seem to be repeating myself. I’m trying to answer your question.

    [24]   T184.13-T185.4.

    [25]   T185.12

24. In the end Mr Oborn said that he formed the opinion that he doubted Ms Hie was capable of making the decision to plead guilty and whether it was a good or bad decision. Although she was capable of understanding the choice that she was making, he said the basis of his reasoning was that at the moment she made the decision, she was concentrating upon the emotional reaction at the crash site,[26] as well as what happened subsequently. He said it was not just at the crash site but it was things that happened later as well. He was not able to articulate what had actually happened later. I then asked Mr Oborn to clarify that opinion. He agreed with me that Ms Hie was capable of making the decision to execute HS1. He believed that this decision would have been both understandable and capable for her in terms of her emotional situation. He recognised that notwithstanding its terms, it was still a plea of guilty. Mr Oborn did not understand that notwithstanding the fact that the Prosecution may not have opposed a suspended sentence, a trial Judge was in no sense bound by such an election and had the final word on the topic. My impression was that Mr Oborn was very surprised by that possible outcome. However, the decision still involved an acceptance of the guilt of Ms Hie as well as an acceptance of the prospect of the advantage in relation to sentencing having no opposition to the suspended sentence.

    [26]   T187.4-T187.26.

1. Mr Oborn agreed that there was not a complete consistency between the opinion he formed in relation to the capacity of Ms Hie to make the decision for HS1 but not to make a decision in relation to HS2 because both of them involved a plea of guilty. In the end, he said that the delineation line was between the emotional bases of HS2, which was far more emotional than HS1. What Mr Oborn was dealing with was then the clinical emotional basis and the difference between that basis for HS1 and HS2.[27] Mr Oborn agreed that there must be some emotional aspect attached to the first decision HS1 and when he was asked how he delineated between the emotional aspects of HS1 and HS2 he said all he could do was listen and project what is being said to him that what was important was Ms Hie being confronted with the actuality of the scene.[28] He said that he assumed that on 17 August 2016 was the first time Ms Hie had been back to the scene in the context of the trial.

   [27]   T189.11-189.28.

   [28]   T190.13.

2. Mr Oborn did not understand that in the three years after the accident, Ms Hie had been back to the scene on at least 4 or 5 occasions and that she had erected some form of shrine dedicated to her daughter near to the accident scene. Going back to the scene would have been some form of emotional remembrance for her. He thought that going back to the scene in this context was not a matter of her choice. Mr Oborn did not understand that she had gone back to the scene of the accident of her own free will and not out of any compunction in the Court process. He did not know that Ms Hie had, through her counsel, informed the Court that she would not go on the view but that, unbeknown to the Court she did attend in the area of the view but not of the view itself. Mr Oborn did not know that it was not until after the adjournment of the Court to attend the view, her barrister and legal advisers learned that she was actually attending the scene. I then read out to Mr Oborn a copy of the transcript from page 83 which records what the Court was told about the intentions of Ms Hie. Mr Oborn was then asked to confirm, in light of all of this further information that he had been given, the importance of the clinical aspect of the emotional response. He provided the Court with this answer:[29]

   MR OBORN:      I think having that knowledge to hand without asking Ms Hie directly as to why she did that, on the basis of any knowledge I can bring to this matter, well, the emotional point I am trying to make, I don’t think is a point I can sustain.

   [29]   T191.19-23.

3. Mr Oborn then agreed that this further information put a different complexion on what Ms Hie said to him in the phone call on the evening of 17 August 2016, that she had to attend the scene for a view. This may well have been an element of untruth or of exaggeration. He said it was a fairly disturbed phone call and his recollection (and his clear impression from earlier evidence) was that she had to attend the scene. Mr Oborn then said that was his interpretation as opposed to what Ms Hie actually said. However, Mr Oborn had the clear impression that Ms Hie actually had to go back to the scene for the first time (in the Court process).

4. Mr Oborn was then informed for the first time that in relation to the giving of instructions for the preparation and execution of HS2, Ms Hie was careful, controlled and rational in relation to the trial process after having entered her guilty plea. He said that would cause him to have a different view. Mr Oborn was then asked this question:[30]

   MS MATTEO:    Can I suggest that at the time of signing those instructions, HS2, that although she was operating under this emotional loading, Ms Hie was nevertheless capable of making a decision between two options.

   MR OBORN:      On the basis of what his Honour has said about her voluntary attendance on that day it appears I must agree with you.

   MS MATTEO:    And capable –

   MR OBORN:      Because the emotional loading would now be equivalent.

   [30]   T195.23.

5. I am satisfied from the evidence given by Mr Oborn that when he prepared his letter of advice of 17 August 2016, he was operating under a number of misapprehensions. The first was that he was not aware of the existence of the documents HS1 and HS2 and the circumstances in which those documents were prepared and executed. He was not aware of the number of times that Ms Hie had returned to the scene of the accident on a voluntary basis (four or five times) since November 2013 and that she had there constructed a ‘shrine of remembrance’ to her daughter. He did not understand that there was no compunction upon Ms Hie to return to the scene of the accident on 17 August 2016, that her solicitors and counsel did not understand that she was going there until after the Court adjourned for the purposes of the view and that she attended at that place voluntarily. There was no ostensible connection to the trial by her attendance at the scene of the accident and the shrine on the day. Mr Oborn accepted that he based his opinion, in the end, upon the emotionally labile state of Ms Hie resulting from the overwhelming emotional effect of her being required to re-attend the scene of the accident for the first time in connection with the trial.

6. Mr Oborn also did not understand, as was the fact, that on the morning of 17 August 2016 Ms Hie had given instructions to her solicitors that she was prepared to plead guilty but that her solicitors and counsel had informed her that when she was re‑arraigned at trial, she should plead not guilty to give her more time to think about her options and to receive any further advice she might require. This was consistent with the very careful, consistent and sensitive approach used by solicitors and counsel in dealing with Ms Hie leading up to the trial. Mr Oborn did not understand that Ms Hie had been dealt with professionally, sensitively and thoroughly in preparation for the trial and that Ms Hie had been in a position to receive that advice, comprehend the advice, ask questions contemporaneous with advice or, having been given time to think and reflect upon matters, to later ask questions about the advice that she was receiving. The only record made by Mr Oborn concerning legal advisers was that, on 11 August 2016, he was told that Ms Hie was very disenchanted with Ms Stokes for not returning her calls and so she was at a loss to know what would happen. Based upon the unchallenged evidence that I have received on this application, that assertion by Ms Hie to Oborn fails to inform Mr Oborn of everything that Ms Stokes had done for Ms Hie in the lead up to the commencement of the trial. There is no evidence before me or any indication that at any time Ms Stokes failed to respond to Ms Hie’s telephone calls.

7. At the end of the evidence given by Mr Oborn, it was clear to me that Mr Oborn was unable to sustain his opinion that Ms Hie could not be relied upon to be able to undertake clear and reasoned decision making on 17 August 2016. That being the case, it is then necessary for me to make a decision about that matter based upon the other cogent evidence that I have received on this application. It is those matters to which I now turn.

   Ms Heather Stokes

8. Ms Stokes eventually swore an affidavit which was lodged in support of the application of Ms Hie to withdraw her plea. Ms Stokes was cross-examined and I have accepted the evidence of Ms Stokes.

9. Ms Stokes informed the Court that she had been involved in the matter from somewhere near the committal stage.[31] She had assistance from Ms Jean Chesters, an admitted practitioner who worked in her chambers.

   [31]   T103.1.

10. Ms Stokes had a number of conferences with Ms Hie in the presence of Ms Chesters and she was always aware and sensitive to the fact that the victim in the collision was Ms Hie’s daughter but she always was able to maintain an objective position in relation to advice given to Ms Hie,[32] although she agreed that this was an ever present factor.

    [32]   T104.26.

11. Ms Stokes found that she was able to engage Ms Hie in discussions about legal matters notwithstanding the tragic nature of the circumstances. She thought that Ms Hie understood the advice that she was giving to her but, as in every case, she could not be 100% certain.[33] Ms Stokes had at least two or three conferences with Ms Hie in the lead up to the commencement of the trial. The standing arrangement was that Ms Hie was free to ask any questions during the course of those conferences and she did so. From time to time she sought clarification about the matters that she was being advised upon and on other times, she took the time offered to her to think about issues and to come back with any questions and instructions. Ms Stokes was in no doubt that Hie understood the process that was occurring, although she always knew that the tragedy of the child’s death stood in the background of all matters.

    [33]   T105.30-106.1.

12. Ms Stokes was involved in the process of preparing HS1. I am satisfied that Ms Stokes at all times made clear to Ms Hie that it was Ms Hie’s decision to execute or not execute that document irrespective of her family’s opinion.[34] I am also satisfied that from time to time members of Ms Hie’s family expressed their opinion about what Ms Hie should do. Ms Stokes took the necessary steps to ensure that any decision made by Ms Hie was her decision and hers alone. Ms Hie was advised by Ms Stokes that the trial Judge may take a different view about suspension of any sentence notwithstanding any concession made by the DPP based upon HS1.[35] I am satisfied that Ms Hie understood that fact. Ms Hie had not communicated that position to Mr Oborn despite having received that advice from Ms Stokes.

    [34]   T108.21-22.

    [35]   T108.29.

13. The affidavit evidence and the viva voce evidence given by Ms Stokes satisfies me that when she signed HS1, Ms Hie made a decision to execute it sufficiently free from any outside pressure. I am satisfied that Ms Stokes made it clear to her that as her lawyer, she was not pressuring Ms Hie to make any particular decision.[36] She recalls that Ms Hie made it very clear to her that HS1 was based upon an acceptance by the DPP concerning the suspended sentence ‘…and not otherwise’. This was emphasised to her by Ms Hie at the time she took instructions for the preparation and execution of HS1.

    [36]   T109.8-13.

14. Ms Stokes communicated to Ms Hie the fact that the DPP would not agree to the terms of HS1. Ms Hie was querulous about that and wanted to know why the DPP would take that particular position. Ms Hie accepted that one reason would be the fact that she had amphetamines in her system at the time of the collision.[37] This was important because, at the time of the preparation of HS1 and the taking of instructions in relation to it, the issue of a suspended sentence was very important to Ms Hie [38] as it gave her an extra reason to get rid of the trial without having to sit through the process of an actual trial.[39] This was despite the fact that at the time, it was apparent that Ms Hie was very anxious and appeared to be under some pressure from her family as well as from the personal pressure she was placing upon herself.[40] Notwithstanding, Ms Hie said to Ms Stokes on a number of occasions that she was vacillating between pleading guilty and not guilty because she believed she was not guilty.

    [37]   T109.16-24.

    [38]   T110.13.

    [39]   T110.23-26.

    [40]   T110.14-16.

15. Ms Hie was to be arraigned on Wednesday 17 August. When Ms Stokes met Ms Hie at Court that morning, she had a discussion with her about why the Director would not remain silent and what decision she should make now having regard to the attitude of the Director concerning sentence. Ms Stokes thought that she would plead not guilty but Ms Hie indicated that she wished to plead guilty. Ms Stokes advised Ms Hie not to rush her decision about that matter, that she should hear the opening and after the view which was to take place early in the trial, there would be an opportunity to finalise instructions.[41] Ms Hie was then re-arraigned on Wednesday 17 August and she pleaded not guilty. The Prosecution opening which I have summarised earlier in these reasons was then made and then after the view there was a further discussion between Ms Stokes and Ms Hie about whether Ms Hie should plead guilty.

    [41]   T111.36-112.10.

16. At that time, the Court had been informed by Ms Stokes, that her instructions were that Ms Hie would not attend the view. It was only when the parties were leaving the Court to go on the view that Ms Hie told Ms Stokes she would be coming up to the site because she was going to the shrine.[42] At that time, when she told Ms Stokes that she was going to attend the shrine, Ms Hie was still prevaricating about her plea. Ms Hie reiterated that she was now considering pleading guilty. She again received advice from Ms Stokes to wait until after the Court had been to the scene and then she would be given a chance to confirm her instructions. Nothing should be done until that time. This was the same advice that Ms Hie had received from Ms Stokes before Court began on that day. In my view, this is entirely consistent with Ms Stokes’ evidence (which I accept) that Ms Hie was given every opportunity to receive advice, consider that advice, ask questions and then be given time to consider all of the advice that she had received and to make her decision.[43]^, [44]

    [42]   T112.6-10.

    [43]   T110.30-32.

    [44]   T111.9-18.

17. Ms Stokes said in her affidavit that although Ms Hie did not attend the view, she attended her daughter’s shrine nearby, and after the view was concluded and the parties were to return to Adelaide to recommence the trial, Ms Hie told Ms Stokes that she intended to plead guilty. She was told that further discussions should be had at the Court and that firm instructions could be given at that time. This was after Ms Stokes had made it clear to Ms Hie that she did not have to attend the view because Ms Stokes thought that it might be distressing and the Court would understand.[45] Ms Stokes wanted to be clear that if Ms Hie was to make a decision about pleading guilty, that sufficient time had expired between the making of that decision and Ms Hie being informed of the Director’s decision to decline to be silent on the question of a suspended sentence.[46] It was in that context that at the scene, Ms Stokes was informed by Ms Hie that she would plead guilty and Ms Stokes said that no further instructions should be given but that they should meet at Court and written instructions taken. I think that the approach taken by Ms Stokes was both appropriate and reflected the long years of experience of Ms Stokes as a barrister at the criminal bar. She has had to deal with these situations on many occasions and she did so carefully, skilfully and appropriately. The appropriateness of her approach was apparent when, upon the return to the Court, Ms Hie prevaricated between pleading guilty and not guilty.[47] Ms Stokes became aware of the involvement of some family members in the prevarication by Ms Hie and Ms Stokes satisfied herself that she had removed the effect of the family opinion expressed to Ms Hie at the time she took her instructions. In the end, quite forcefully (compared to the approach that she had previously taken), she told Ms Hie that she would need to make a decision and if she wanted to plead not guilty then that was a decision she could make and Ms Stokes could defend her.[48]

    [45]   T112.12-15.

    [46]   T111.17-18.

    [47]   T112.25-27.

    [48]   T112.38-113.2.

18. On a number of occasions there was reference made to a ‘plea of convenience’. This was explained to Ms Hie largely in the context of HS1. Ms Stokes explained to Ms Hie that she could choose to plead guilty even in the absence of a consciousness of guilt where that was the choice she was comfortable to make. This comfort could be informed by any number of factors and circumstances. One was the attitude of the Director to a suspended sentence. I am satisfied that the question of a plea of convenience had greatest significance for the instructions reflected in HS1. Once the Director rejected that proposition the choices available to Ms Hie became more pronounced and much narrower.

19. Ms Stokes said that the conversation on 17 August was more forceful than conversations that she had in the conferences that had occurred in the lead up to the commencement of the trial.[49] I make no criticism of Ms Stokes for this approach. I think it was appropriate. There is no doubt that Ms Hie was vacillating about her position. She had already pleaded not guilty at the time of arraignment at the commencement of the trial. If she wanted to change that plea, then that was something she could do and she needed to understand that Ms Stokes would defend her if she continued with her plea of not guilty. This was now the second day of hearing and the first day had been lost due to negotiations between the parties. I am satisfied that this advice was given to Ms Hie by Ms Stokes on a number of occasions at that time. Ms Stokes said that all times Ms Hie was in two minds about her plea and that Ms Stokes advised her that if she was satisfied that she was not guilty, then she had the decision to continue to defend the matter or she could make a decision to change her plea. When she made mention of the possibility of changing her plea, Ms Stokes told Ms Hie that any plea that she then entered was called a ‘plea of convenience’ and this was allied to the assertions made by Ms Hie that although she thought she was not guilty, she could not cope with a trial and reliving the experience of her daughter’s death. This was consistent with the earlier advice given to Ms Hie about a ‘plea of convenience’. I am satisfied that Ms Hie was left in no doubt about the choices available to her and that in the end, her vacillation could end either by continuing to plead not guilty or by making some other decision whether as a matter of convenience or otherwise to change her plea to a plea of guilty.[50]

    [49]   T112.34-36.

    [50]   T109.8-13.

20. Ms Hie gave instructions to Ms Stokes that she wished to plead guilty. At that time, Ms Stokes then prepared the document HS2. The advice was thorough, complete and was skilfully given. HS2 was signed by Ms Hie. Ms Stokes believed that at the time she executed this document, Ms Hie had given the decision sufficient thought and had made her decision. Ms Stokes thought that at that time she had made her own decision but allowed for the fact that the decision could have been contaminated by the pressure she had been under.[51] Ms Stokes had told Ms Hie’s family to ‘butt out’ from the decision making process and Ms Stokes was aware of anger directed at her because she had isolated Ms Hie and given her separate advice upon which Ms Hie was ruminating before giving her decision.[52] Ms Stokes gave advice to Ms Hie that she should forget what everybody said, she should consider the advice she has received, she was entitled to take into account the views expressed by her family but in the end Ms Hie had to make her own decision. Nobody could make that decision for her and all other people, solicitors, counsel and family could not make her decision but that decision had to be made by her for her own purposes.[53] It was at that time that Ms Hie ruminated upon the advice that she had received and Ms Stokes was satisfied that Ms Hie was able to weigh up the options and then to make a free choice to plead guilty.[54] Ms Stokes was satisfied that she had clear instructions made after a free choice to enter a plea of guilty and to advise the Court of that decision on behalf of Ms Hie.

    [51]   T113.17-26.

    [52]   T113.27-31.

    [53]   T114.6-18.

    [54]   T114.24-26.

21. Ms Stokes agreed that following the entry of the plea of guilty and the reading of the allocutus, Ms Hie was able to give her instructions on the application by the DPP to vary bail.[55] She was able to take those instructions quickly in Court and Ms Hie appeared to understand what was going on and to give clear instructions.[56] At no time did Ms Stokes think that there was any reason to question Ms Hie’s fitness to plead on any basis.[57] Ms Stokes was satisfied that Ms Hie had the ability to weigh up the options and that she made a free choice to plead guilty.[58]

    [55]   T114.33-35.

    [56]   T115.1-10.

    [57]   T116.4-21.

    [58]   T114.24-26.

    Ms Jean Chesters

1. I refer in particular to the comments of Gray J at [201]. There seems little doubt that his Honour was there drawing in part upon the comments made by Dawson J in Meissner. So much is plain from the decision of the Court of Criminal Appeal in R v Brooks.[193] This was the appeal from the decision of Bleby J at first instance to which I have earlier made reference.[194]

   [193] (2007) 96 SASR 478.

   [194] R v Brooks and Childs [2006] SASC 247 at [41] et seq.

2. In Brooks, there was no evidence that the solicitors advised Brooks to plead guilty. The same situation pertains to the case at bar. Brooks gave evidence by affidavit that she pleaded guilty because she thought there was an overwhelming amount of evidence against her because she was present at the scene of the crime and she thought a jury would find her guilty. She said she did not understand she could be present during the murder of Mr Anderson but still not be guilty of his murder. She said the solicitor did not discuss that possibility with her at all. She also said she did not explain to her solicitor that what she did amounted to murder in her own mind or the basis upon which she would plead guilty and the solicitor did not ask her about that. Again this is similar to the case at bar. At [56] et seq, Doyle CJ found that the solicitor advised Brooks that the Prosecution case was based on the concept of joint enterprise and that she could be found guilty of murder if she was party to a plan to kill the deceased or cause him serious bodily harm or she was party to a plan to do him some lesser harm she realising that her co-accused Childs might be planning to go further and to kill Mr Anderson intending to do so and that in fact happened. Doyle CJ found that Brooks knew and understood that her prospects at trial were bleak and that she understood the nature of the Prosecution case against her even if she did not necessarily understand all of the details. She certainly understood the basis of liability arising out of a joint enterprise or a common purpose but again she may not have understood all of the detail of the advice about joint enterprise. At [68] et seq, Doyle CJ repeated the comments that he made in Pugh at [32]-[33] and at [35]-[40]. Doyle CJ emphasised that the precise approach to be taken in any matter such as the case at bar will depend upon the circumstances of the particular case. There is no general rule, for example, that a miscarriage of justice will occur if there has been imprudent or inappropriate advice given or, whether the plea of guilty was attributable to a consciousness of guilt or whether the material before the Court shows there might be some question about guilt. At [69], Doyle CJ described these considerations as being relevant issues but they are not universally applicable tests. In Brooks, Doyle CJ repeated the comments that he had made in Pugh at [40] as follows:

   I respectfully agree with Hulme J (dissenting) in KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 that the ultimate test is whether there has been a miscarriage of justice, and that it would be inconsistent with the observations by members of the High Court in Meissner to hold that a plea not attributable to a genuine consciousness of guilt must be set aside: at [163]. The presence or absence of a genuine consciousness of guilt on the part of the accused may well be relevant, but will not be decisive.

3. In the case at bar, Ms Hie has vacillated between the position where she wanted to plead guilty and wanted to plead not guilty to the charge on the Information. In those circumstances, it is difficult to gauge whether there has been a relevant consciousness of guilt on the part of Ms Hie. In light of the evidence before the Court, I think it is appropriate to proceed on the basis that at the time she entered her plea, Ms Hie did not have a genuine consciousness of guilt. Although I do not accept that position, I will proceed on the basis that a relevant matter for me to take into account in arriving at my decision on this application is that Ms Hie did not have a genuine consciousness of guilt at the time she entered her guilty plea.

4. The question that must continually be addressed is whether there has been a miscarriage of justice. I refer again to the decision of Dawson J in Meissner at p157. There his Honour referred to a number of settled authorities[195] when his Honour held that ordinarily, a miscarriage of justice will only occur where the accused:

   1.   Did not understand the nature of the charge; or

   2.   Did not intend to admit he was guilty of it; or

   3.   If upon the facts admitted by the plea he could not in law have been guilty of the offence.

   [195] R v Forde [1923] 2 KB 400 at 403; R v Murphy [1965] VR 187 at 188; R v Chiron [1980] 1 NSWLR 218 at 235; R v Liberti [1991] 55 A Crim R 120 at 121-122; R v Ferrer-Esis [1991] 55 A Crim R 231 at 232-233.

5. In the case at bar, there is no evidence that Ms Hie did not understand the nature of the charge and there is no evidence before the Court and no submission was made by Mr Mead to the effect that the facts admitted by the plea could not mean that, in law, Ms Hie was guilty of the offence.

6. That leaves the consideration of Ms Hie’s intention to admit her guilt. This consideration must be properly understood in the background of the other comments made by Dawson J and the other members of the High Court in Meissner as they have been referred to consistently by the Court of Criminal Appeal of this State in Pugh, Brooks and in other decisions. This is not a test where fully and properly informed, Ms Hie did not intend to admit she was guilty of the charge on the information. Rather, it is a test, properly understood, to require consideration of the circumstances where Ms Hie may have misunderstood the charge to which a plea of guilty was being entered so that she did not thereby admit that she was guilty of the charge. This is not such a case. I am satisfied that on all of the evidence Ms Hie intended to admit her guilt of the charge at the time she entered her plea. In doing so, she could be taken to have made an admission of all of the elements of the offence.[196]

   [196] Meissner at 157.

7. On the third matter referred to above, there is obviously a mixture of subjective and objective elements. The subjective elements are involved in the decision to enter the plea and these are apparent from the discussion earlier of the facts surrounding that event. On the objective elements, it is not a situation where I am required to make some finding on the merits of the Prosecution case. In the absence of tested evidence on the issues, that is not possible. All that is necessary is to make a finding which I do, that the facts admitted by the plea are sufficient to satisfy me that, in law, Ms Hie could have been guilty of the offence charged.

8. In light of the settled authorities set out above, it is then necessary to analyse those considerations referred to by Mr Mead in his submissions. Mr Mead made five principal points in his submissions all of which are addressed hereunder.

9. The first may be summarised that notwithstanding that Mr Oborn backed away from his primary opinion, there is still value in the evidence that he gave in the context of the issues for consideration before me on the question of the interests of justice. Mr Mead submitted[197] that Mr Oborn’s failure to support his expressed opinion in the letter of 17 August, has to be read in the context of the many questions that he was asked by Ms Matteo in cross-examination. In particular he emphasised the difference in the emotional loading applicable to Ms Hie when she executed HS1 and then HS2. The execution of HS1 would, in Mr Oborn’s opinion, have been a rational decision under the emotional pressure that Ms Hie was under at the time.[198] Mr Mead focussed upon the question of emotional intensity rather than emotion in the circumstances where Ms Hie attended at the accident scene which would have been a very confronting situation rather than, as might normally have occurred, by a visit by her to a memorial shrine.[199]

   [197] T374.

   [198] T377.12-25.

   [199] T188; T379.1-10.

10. I accept from Mr Mead’s submissions that the evidence given by Mr Oborn must be read in the context of the evidence. However, the submission of Mr Mead overlooks the fact that once Mr Oborn was properly informed about the events as they occurred on 17 August 2016, the distinction that he made between the execution of HS1 and HS2 was unsupportable. This was because the rationality of the decision to execute HS1 (and the comparative lack of emotional burden) could not be distinguished from that which applied in relation to HS2 when it is known that the presumption of the emotional burden associated with HS2 was thought to be the compulsory nature of the attendance at the accident site on the day of the view. A further aspect of that matter is that Mr Oborn received very limited and what are largely unrecorded instructions from Ms Hie prior to preparing the letter in circumstances where Ms Hie had been told by Ms Stokes that she needed a letter from a treating psychologist to support her application to withdraw her guilty plea.

11. Also, Mr Oborn had not been informed of the fact that the genesis of the emotional reaction of Ms Hie on the evening of 17 August was her viewing of the television news and her perception that what was being said about her was incorrect. It was her perception of that error (in her mind) that she thought needed to be corrected that led to the events of that evening. Mr Oborn was confronted by a very emotionally charged situation and a very emotional person. He made a connection between that emotional state and the compulsory attendance at the site to form a conclusion that any decision made in that emotional state would not have been a rational decision of the person making it. This is in contradistinction to the evidence given by Ms Stokes and Ms Chesters, that in the background of what was obviously an emotional matter, there was no more or no less emotion in the decision making process engaged in by Ms Hie at the time she gave her instructions to plead guilty and the execution of HS2.

12. The second submission of Mr Mead was that the circumstances of the day were indeed more emotionally intense and thereby created pressure upon Ms Hie. Mr Mead submitted that the proximity of the shrine from the accident site was a relevant matter[200] and therefore the execution of HS2 must be seen in that background. This also includes the difference between HS1 and HS2.[201] This must also be seen in the background that the trial had actually started and the position arrived at would perhaps be the most emotional aspect of the trial.[202]

    [200] T382.25-31.

    [201] T383.33.

    [202] T384.1-5.

13. I am unable to give significant weight to the fact that the trial had actually started at the time HS2 was executed. Also, any assessment made by Mr Oborn about the effect of the attendance at the ‘shrine’ was made before Mr Oborn was provided with all the information regarding the circumstances of the signing by Ms Hie of HS2. When provided with that information, Mr Oborn stepped back from his opinion. I am unable to place any significant weight on the submission by Mr Mead that this indeed was the most emotional aspect of the trial.[203] That is because what had until then occurred in the trial would not, on any objective view, be more emotional than the evidence that was to come in relation to the collision. This must be measured by the content of the opening of the trial by Ms Matteo which outlined the evidence against Ms Hie on the offence charged. This in particular included the evidence of the driver of the blue Toyota Rav 4 vehicle and the maroon Hyundai vehicle, both of whom were to give evidence about seeing the van Ms Hie was driving and one of whom gave evidence about noticing Ms Hie  looking to her right as if to make a lane change. It also overlooks the photographic evidence which shows the passenger side of the van Ms Hie was driving colliding with the back right hand corner of the truck. The Prosecution contended that an inference is available that Ms Hie’s vehicle had logically moved to the right consistent with the evidence given by the drivers of the other vehicles.

    [203] T384.1-5.

14. Mr Mead also submitted that it was at the view that Ms Hie decided to plead guilty.[204] I am unable to accept that submission. It is contrary to the unchallenged evidence given by Ms Stokes and Ms Chesters that Ms Hie indicated her willingness to plead guilty on the morning of 17 August 2016.[205] It was on that occasion that Ms Stokes advised that because of the vacillating nature of the instructions she was giving, that the matter of her final instructions would be visited later in the day after hearing the Prosecution opening, having the view and then taking the time to obtain instructions. I am satisfied beyond reasonable doubt (because I accept the evidence of Ms Chesters and Ms Stokes) that the decision to plead guilty had first been raised prior to the Court commencing on 17 August. This was before Ms Hie heard the opening made by Ms Matteo which set out the case of the Prosecution. Even if Ms Hie did not read the witness statements that had been provided to her (which fact I accept) she would have heard for the first time in a logical and sequential way, the case for the Prosecution. She would have seen the photographs which indicate the alleged point of collision with the front left hand of her vehicle and the rear right hand of the truck, the evidence to be given that Ms Hie looked to her right as if to change lanes as well as the general photographic evidence.

    [204] T386.35.

    [205] T76.25-33.

15. On the same topic, Mr Mead submitted that if that evidence given by Mr Oborn at T195 was taken as his ultimate conclusion on the matter, then there was still value in his report.[206] The difficulty with that submission is to assess what the value could be. I did not detect any qualification of Mr Oborn’s evidence that he would attempt to maintain his views in the absence of proper instructions. Mr Oborn was telling the Court was that in light of the fact that he did not have proper instructions for the completion of his report, he could not necessarily sustain his opinion until such time as he was properly instructed and did have complete and clear instructions. The value of his report therefore is minimised. Mr Mead also submitted[207] that there is some value in the evidence given by Mr Oborn because it is based upon his observations. However, those observations are based upon the incomplete knowledge that he had of the circumstances of 17 August 2016. They would carry greater weight if the opinions and evidence given by Mr Oborn were based upon a complete level of instructions.

    [206] T87.22-28.

    [207] T387.31.

16. Finally, on this topic, Mr Mead submitted that there was evidence of personal pressure upon Ms Hie at the time she executed the document HS2.[208] Mr Mead submitted that Ms Stokes and Ms Chesters supported the contention that Ms Hie was under pressure from family and others and was emotional at the time she executed HS2. I am unable to accept that submission. Ms Chesters said that Ms Hie was anxious but that was Ms Chesters’ observation from the first time she met her. I would not accept evidence to the effect that Ms Hie was not anxious at the time. It would be impossible to think that a person facing the circumstances then faced by Ms Hie would not have a degree of anxiety. However, in every criminal matter of whatever form and nature there is pressure both physical and emotional and there is anxiety. There will be differences in the way people can sustain that pressure and anxiety but nevertheless it is present. The Criminal Courts deal with such issues many times a day on a daily basis.

    [208] T395.17; T395.5; T395.9-20.

17. Ms Stokes and Ms Chesters attempted to remove Ms Hie from the outside pressures that she might have been facing including her family at the time she gave her instructions for HS2. This was the third time on that day that Ms Hie had come to a decision to plead guilty. The first occasion was at a time before Court began, the second occasion was when the Court was on the view and this was the third occasion. As would be expected, at the time Ms Hie came to sign HS2, she was under pressure and was emotional. For the reasons already expressed, I would not accept any submission to the contrary. However Ms Hie’s own evidence is that she was not under pressure from her lawyers. I have heard the evidence of Ms Stokes and Ms Chesters and I consider that their approach and their advice was fully and completely professional. Ms Hie herself said to me that she was under personal pressure which was the same pressure as she had been under for the last three years.[209] In part, this was the pressure of confronting the circumstances that gave rise to the charge.

    [209] T325.

18. The third issue raised by Mr Mead was that the plea of guilty was entered without a consciousness of guilt.[210] However, it is to be noted that by the time she gave her final instructions for HS2, Ms Hie was aware of all of the evidence against her and she had already conceded that she had amphetamines in her system. She disclaimed any effect of those amphetamines upon her but that is a matter for other evidence. In so submitting, Mr Mead attempted to distinguish the High Court decision in Meissner.[211] I am unable to accept that submission. The Court of Criminal Appeal decisions in Pugh and Brooks make it very clear that the comments which fell from the High Court in Meissner are relevant to a determination of an application such as this and that decision is not distinguishable on its facts.

    [210] T389.19.

    [211] T391.15.

19. Mr Mead then submitted that a plea entered without a consciousness of guilt is sufficient to enliven the discretion to allow the plea to be withdrawn.[212] Mr Mead relied upon the decision of Sholl J in R v Murphy. Murphy turned upon the advice given by counsel and whether the accused was unduly influenced by her counsel. The Court was satisfied that notwithstanding the merit of some of the matters raised by the accused Murphy, the decision to plead guilty was her own decision taken after consultation including with her husband. Therefore, the question of the strength of the advice was a matter between Murphy and her legal representatives. In the absence of fraud, duress or the like which was not raised, there were no grounds for the relief sought by Murphy. In my view, Murphy provides no support in this case. I am also of the view that the decisions of the Court of Criminal Appeal of South Australia in Pugh and Brooks do not support the contention of Ms Hie. To the contrary, for the reasons I have already set out, the question of genuine consciousness of guilt is a matter that is relevant but not decisive. Finally on this topic, Mr Mead suggested there was an inducement to enter into a plea of convenience.[213] I am unable to accept that submission. The plea of convenience was entered by Ms Hie following consultation with her legal advisers.

    [212] T391.15-25.

    [213] T396.21.

20. The fourth issue raised by Mr Mead concerned surrounding circumstances. He referred to the evidence given by Ms Stokes[214] that although she believed Ms Hie had ‘bitten the bullet’, that decision was probably contaminated by all the pressure that she had been under. Earlier in these reasons, I have already accepted the pressure that Ms Hie would have been under in coming to her decision. But that is pressure built upon several levels and bases. These vary from the tragic nature of the circumstances through to the evidence accumulated by the Prosecution against Ms Hie surrounding the circumstances of this collision and including the absence of any clear medical evidence supporting Ms Hie’s contention about having a ‘seizure’. There is no evidence to suggest that the plea was not entered freely, voluntarily and following advice. All of the evidence contraindicates any such suggestion.

    [214] T113.17-25.

1. There was also evidence of pressure from Ms Hie’s family[215] but Ms Hie herself does not mention that pressure in her evidence; she mentions personal pressure which was related to the tragic circumstances of the accident. Again the pressure from her family was ever present as was the personal pressure she was facing. She was able to make a decision notwithstanding those matters. Mr Mead then submitted that it was not simply a matter of looking at HS2 but having an appreciation of all of the surrounding circumstances, the pressure that she would have been under and the inevitability, perhaps, of a plea of convenience notwithstanding an arguable defence.[216] I am unable to accept the submission of Mr Mead. These are all questions of fact and degree which accumulate as a result of many circumstances and combination of circumstances. I consider that the pressure that was created in the mind of Ms Hie resulted from her observing the commercial news channels in the evening of 17 August and then going to websites relating to those commercial news channels and seeing the posts made by commentators about such news. It was then that Ms Hie formed the view that what was being said about her was incorrect and for that reason she must withdraw her guilty plea. Those are part of the surrounding circumstances of the day and those matters contributed to what Ms Hie perceived to be the pressure upon her. They were not matters to be taken into account in the formation of the intention to make a plea of guilty as a matter of convenience and to put aside what Ms Hie might have perceived in her own mind to be an arguable defence. I therefore obtain little or no assistance from this submission.

   [215] T113.

   [216] T389.7-16; T389.19; T389.36; T394.27.

2. Finally, Mr Mead submitted that holding a defendant to a plea entered to avoid a trial amounts itself to a miscarriage of justice.[217] It was suggested that this was an uncommon motive or was not conducive to a just outcome. I am unable to accept that submission. It overlooks the wisdom of what fell from Dawson J in Meissner at p157 of the many and disparate reasons that a person may enter a plea of guilty such as to ‘…avoid worry, inconvenience or expense; to avoid publicity; to protect his (her) family or friends or in the hope of obtaining a more lenient sentence than (she) would if convicted after a plea of not guilty…’.

   [217] T397.11; T397.17.

3. The submission of Mr Mead also points to what he suggests is an uncommon motive to plead guilty which is not conducive to a just outcome. In this exercise, it is not a matter for the Court to attempt to distinguish between what might be a common or uncommon motive and whether that is conducive to a just outcome. What is conducive to a just outcome is a matter for Ms Hie, having regard to the reasons in her own mind why she may have thought it was appropriate to enter into a plea of guilty. One of those plainly was to avoid a trial and the repetition of the events which led to the death of her daughter. As I have said on a number of occasions, that is a very understandable motive for a person in the position of Ms Hie. Whether it is a common or uncommon motive is not to the point. It is an appropriate motive that, for Ms Hie, was at that time conducive to a just outcome. I am unable to accept this submission of Mr Mead because it would lead to a chain of enquiry for the Court which on one view might have no end. It is also inconsistent with the comments by Dawson J and the other members of the High Court in Meisnner that the guilty plea is an admission of all of the elements of the offence. Further, on a number of levels, it ignores the fact that Ms Hie had attempted to give instructions to solicitors and counsel on two occasions to plead guilty prior to executing HS2 on 17 August 2016.

   Result

4. In Brooks at [80], Doyle CJ said the presence or absence of the consciousness of guilt may be a significant factor in some cases. I have treated it, i.e. the absence of a consciousness of guilt, to be significant in this case. However, as in Brooks, I am satisfied that the choice made by Ms Hie was the exercise of a free and informed choice in her own interests. I am also satisfied that Ms Hie understood the nature of the case against her and also its strength. Ms Hie was present during the opening of the case by Ms Matteo for the Prosecution. It thoroughly and succinctly set out the basis for the Prosecution case which it contended would lead to a finding of guilt on the part of Ms Hie. I therefore consider that an enquiry about consciousness of guilt is largely irrelevant in these circumstances. I am not required to try the issue of Ms Hie’s guilt. I am reminded of the difficulties about using that notion of consciousness of guilt for those reasons.[218] I have no doubt that Ms Hie entered her plea with a full understanding of the charge made against her and the case made against her. I am therefore satisfied that although the question of the consciousness of guilt is a relevant consideration, it is not a matter which weighs sufficiently heavily in the balance to tip the scales in favour of Ms Hie.

   [218] Brooks at [80]; see also R v KCH (2001) 124 A Crim R 233 at [90]-[94] per Ipp JA, at [162]-[163] per Holme J.

5. It follows that I am also satisfied that there would be no miscarriage of justice in refusing the application of Ms Hie to set aside the guilty plea.

   Conclusion

6. On the facts of this matter and on the authorities that bind me, I am unable to form any conclusion that a miscarriage of justice would arise in the event that I allowed the guilty plea entered by Ms Hie to stand. Adopting the approach of Doyle CJ in Brooks, I also consider that there is nothing to impugn the plea of guilty and that this is a case of an accused person who has pleaded guilty but on reflection because of the publicity surrounding her plea has had second thoughts about her decision. Those second thoughts are not sufficient for me to exercise my discretion in favour of Ms Hie.

7. I address the two questions for consideration set out by me at [140] of these reasons.  My answers to those questions are as follows:

   1.   Yes.

   2.   No.

8. I dismiss the application.

   
   

(1)A person who—

(a)  drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person; and

(b)by that culpable negligence, recklessness or other conduct, causes the death of another,

is guilty of an indictable offence.