R v Holden

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 551 of 2008

THE QUEEN
	v
GRAHAM JOHN HOLDEN

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JUDGES	BUCHANAN and NEAVE JJA and HANSEN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 July 2009
DATE OF JUDGMENT	29 October 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 254
JUDGMENT APPEALED FROM	[2007] VSC 417 (King J)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant pleaded guilty to manslaughter – Whether guilty plea should be set aside – Whether guilty plea made voluntarily and in the exercise of a free and informed choice – Alleged improper pressure to plead guilty constituted by pressure from legal representatives, comments made by judge, mental state and financial circumstances – Desire to withdraw guilty plea – Whether miscarriage of justice resulted because applicant was unaware of ability to withdraw guilty plea – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Ann Valos Criminal Law

BUCHANAN JA:

I would dismiss the application for leave to appeal against conviction for the reasons stated by Neave JA.

NEAVE JA:

The applicant, Graham John Holden, was presented for trial in the Supreme Court on one count of murder. On 25 July 2007 (the seventh day of the trial) following discussions between counsel, Mr Holden pleaded not guilty to murder but guilty to manslaughter. The jury then returned a directed acquittal on the count of murder and Mr Holden was convicted of manslaughter. After hearing a plea in mitigation on 27 July 2007 and 29 August 2007, the learned judge sentenced him on 12 October 2007 to six years’ imprisonment, with a non-parole period of four years.

Mr Holden now seeks leave to appeal against his manslaughter conviction.[1] In essence he claims that his guilty plea should be set aside because it was not made in the exercise of a free and informed choice, but occurred as a result of pressure brought to bear on him by the trial judge and his legal representatives. He alleges that he pleaded guilty to manslaughter when he was not mentally fit to make an informed choice as to whether he should do so, that he was in fact acting in self defence when he killed the victim and that he had at all times intended to plead not guilty to murder.
[1]The applicant was granted an extension of time to apply for leave to appeal against conviction on 17 November 2008. He also sought leave to appeal against sentence, but that application was abandoned on 16 March 2009.

Mr Holden claims that he killed Torney in an act of self defence. His amended outline of submissions noted that:

The applicant had been attacked with a spade in an isolated location by a known murderer who both boasted of and was suspected by police of being a hit-man and multiple murder, and who had threatened and terrorized [sic] the applicant for several months beforehand thus the applicant had very good reason for believing that he was threatened with imminent death, and was unable to retreat from the situation.

He also relied on statements contained in his affidavit sworn on 16 June 2008 and a lengthy unsworn statement explaining the events that lead up to Torney’s death.

In the alternative Mr Holden alleges that his plea of guilty should be set aside because after he had pleaded guilty, he told his legal representatives that he wanted to withdraw his plea, but was not told that this might be possible. He claims that he only became aware that an application could have been made to the trial judge to withdraw his guilty plea after he had been sentenced.

The matter was listed for hearing on 2 April 2007, when Mr Holden appeared unrepresented. A friend, Mary Cotter, who is not legally qualified, assisted him to prepare documentation for the appeal and sought leave to be heard on his behalf. The Court adjourned the appeal to give Mr Holden the opportunity to arrange legal representation and he was represented by counsel at the hearing.

Background to the offence

The Crown case against Mr Holden was that he had intentionally killed Lee Patrick Torney (‘Torney’) on or about 16 April 2005 and hidden the body by putting it down a mine shaft. The victim was last seen on that day, although his remains were not found until 7 March 2006.

At the time he was killed, Torney was on parole for murder and armed robbery. He was living in Mr Holden’s house before his disappearance and had been growing cannabis on Mr Holden’s property. The defence case was that Mr Holden had killed Torney in self-defence, after Torney had attacked him because of a dispute about the cannabis. It was said that Mr Holden was terrified of Torney because he was a violent man who associated with notorious criminals.

Police investigating the victim’s disappearance spoke to Mr Holden in August 2005. Mr Holden told the police that he did not know where Torney was and that he thought he may have gone into hiding.

In November 2005 Mr Holden began living in a Housing Commission flat in Collingwood. Josie Walton, the daughter of his previous de facto partner, and her boyfriend, Kallan Cole, visited him there. Mr Holden told them that Torney had been murdered by two males sent by Torney’s (now deceased) brother, Mick Torney. They had dropped the body in a mineshaft and had told him where the body was.

On 20 February 2006 the police intercepted a phone conversation between Mr Holden and Maree Merrick, the former de facto partner of Mick Torney, in which the following exchange occurred:

HOLDEN:Yeah. And just tell them to dig up Mick and ask him.
MERRICK:     Yeah’hh. (Laughs)
HOLDEN:That’s all I say.
MERRICK:     Yeah’hh.
HOLDEN:Yeah, ‘dig up Mick.’
MERRICK:     Yeah.
HOLDEN:He may as well wear the blame for it, hey? (Laughs)
MERRICK:     Oh, well I don’t think he’d mind.

Torney’s remains were found in a mine shaft on 7 March 2006. The body, which was in a deteriorated state, was about four and a half metres down the shaft and was covered with soil and several drums. At the trial, Dr Dodd, a forensic pathologist, and Dr Blau, a forensic anthropologist, gave evidence about the injuries suffered by Torney. They said that the autopsy indicated that Torney’s skull was first fractured by a blow on the back of the head. There were at least two other fractures on the side of the skull, which suggested that Torney had been hit by a tool with a straight edge, possibly a spade or a shovel. There had been at least three significant applications of force to Torney’s head.[2]
[2]It was possible that there was a fourth blow as well.

On 7 March 2006, after the body had been found by police, Mr Holden’s sister, Leanne Holden, told him in a recorded telephone conversation, ‘make sure you go for fucking self-defence or something Bushy’, and Mr Holden replied ‘I’ll be in gaol for 20 years’.

Mr Holden was arrested on 10 March 2006. In the police interview following his arrest, he was asked if he wanted to make any comment in response to the allegation that he was involved in Torney’s murder. He said ‘just not me’. He suggested that Mick Torney, who had himself died in September 2005, had arranged the victim’s murder, because Torney had tricked their mother into signing a will in his favour and Mick was afraid that Torney would kill Mick’s son. Mr Holden agreed that he had been driving Torney’s car after he disappeared but said that Torney would not mind and then said that Mick Torney had given him the car.

Mr Holden said that a lot of people were scared of Torney but that at the time when Torney had helped him get rid of some unwanted tenants he was not afraid of him. He said ‘he saw me work and everything, so he knew I was strong.’ He said that if he and Torney had a fight he would run. He then denied he had ever had a fight with Torney. It was put to him that he had killed Torney in the course of a fight. He denied that this was the case and said again that ‘Mick got it done.’

Mr Holden was then charged with murder and remanded in custody. Investigators obtained transcripts of phone calls made by Mr Holden while he was on remand. In a phone call between Mr Holden, Patrick Torney (Maree Merrick and Mick Torney’s son) and Leanne Holden on 15 March 2006, Mr Holden said:

Yeah, I wanted to talk to you about when, you know, we moved those plants and [Torney] put the knife to my throat and that.

Patrick Torney replied, ‘yeah’ and Holden said, ‘and just get all, you know, lots of things the crazy nut’s done’.

In a phone conversation with Rick Meadows, a friend of Mr Holden’s, recorded on 21 March 2006, Mr Holden referred to a confession letter he had given Mr Meadows to give to men he was afraid were pursuing him over Torney’s death. He said:

Well um, I told you, you know, that [Torney] hit me with a shovel, I overpowered him, he ended up in the shaft.

He also said that:

I’m going for self-defence ‘cos he hit me with a shovel and he was going to kill me.

He spoke to Patrick Torney on the same day and said:

… couldn’t get it out of my head for one it was all over a dope plant and I just thought I was as bad as [Torney] for what he did … the green pot plant that it was all over is still out at the farm ‘cos what happened is I put that in the car, the white car, tied [Torney] up the back and towed him, and just went up the back through tunnel hill dropped off the plant and his car and walked back along the railway line … fancy hitting me with a shovel all over a dope plant.

On 26 March 2006, he spoke to Mr Meadows and referred to a conversation with his psychologist and said:

No I had a great chat talking with her said … I told you the truth about him hitting me with a shovel over a dope plant and I gave you that confession note and all that kind of stuff ‘cos the confession note’s gunna be pretty important.

Mr Meadows said ‘righto’ and Mr Holden reminded him of ‘that letter I gave you in that envelope, to give the gangsters when I died’. The reference to gangsters relates to Mr Holden’s fear that he might face a reprisal as a result of having killed Torney. His concern about that matter was heightened by a visit from two undercover police who visited him prior to his arrest inquiring about Torney’s whereabouts.

Later in the same conversation Mr Holden referred to what he had said in his police statement and the following exchange occurred:

MEADOWS:‘Yeah well that’s all I know.’
HOLDEN:‘Yeah well, he hit me with a shovel.’
MEADOWS:‘Yeah I know that.’
HOLDEN:‘And I overpowered him, you know?’
MEADOWS:‘Yeah.’
HOLDEN:‘Over a fucking dope plant.’
MEADOWS:‘But that’s all there was to it.’
HOLDEN:‘Yeah. And I didn’t go into the gory details with you or anything, so.’
MEADOWS:‘No.’
HOLDEN:‘I haven’t gone into details with anyone, you know, I haven’t told anyone anything.’

Mr Holden’s mental condition was assessed by Dr Lester Walton, a psychiatrist, prior to his trial. Dr Walton considered that Mr Holden could not make out a defence of mental impairment. Mr Holden’s trial commenced on 17 July 2007.

Circumstances of the guilty plea

The guilty plea occurred in the following circumstances. On 25 July 2007, Mr Meadows gave evidence-in-chief on a voir dire, that a few weeks before Mr Holden was arrested, he had told Mr Meadows that ‘we didn’t have to worry about [Torney] any more’ and then said it was an accident and that ‘basically it was a fight that got out of control’. In response to a question from the judge, Mr Meadows said that Mr Holden did not say anything about the killing of Torney on any other occasion. Later he said that a few weeks after his arrest Mr Holden had told him at the same time that he was responsible for Torney’s death, it was an accident and basically it was a fight that got out of control. He then said that the conversation about the fight had occurred a few weeks before Mr Holden’s arrest, when Mr Holden was in the Alexander Bayne Hospital, after having attempted suicide. He also said that Mr Holden had told him that ‘[Torney] had hit him in the back of the legs with a shovel and there had been a fight’.

Later in his evidence at the voir dire, in response to a question from the judge, he said that there had been two conversations, the first of which had occurred in Mr Holden’s home and the second at the Alexander Bayne Hospital. In the first conversation, Mr Holden had whispered to Mr Meadows, ‘no need to worry about Torney’. In the second conversation (said to have occurred at the Alexander Bayne Hospital) Mr Holden had said that he had had a fight with Torney and been struck with a shovel. It was put to Mr Meadows that in the weeks immediately prior to Mr Holden’s arrest, he was not an inpatient at the Alexander Bayne Hospital, which cast doubt on the timing of the conversation. Mr Meadows said that he did not have a good memory. He repeated this in cross-examination by defence counsel.

Following this evidence, the following exchange occurred between her Honour and counsel for the Crown:

HER HONOUR:        Can I say I think you two should be talking and I’m talking meaningful talking.
COUNSEL:Sorry, your Honour.
HER HONOUR:        I think that the Crown and the defence should be having meaningful discussions. It seems to me that both sides would be best served if this resolved, but I can’t make you, of course, but it seems to me that that’s the path we’re heading to. Now I’m – it’s only my opinion but I think that worthwhile discussions really should be had between you.
COUNSEL:Yes your Honour.
HER HONOUR:        Big question then. How long do you need? I don’t want to keep the jury just sitting there.
COUNSEL:Your Honour, could we have until midday?
HER HONOUR:        Okay. I will just bring the jury in and explain to them what is going on - - -
COUNSEL:Yes.
HER HONOUR:        - - - without going into any detail.

The jury was sent out at 11.20 am. The following exchange then occurred between the judge and counsel for the prosecution:

HER HONOUR: Okay, I will give you time. I really would like to stress that I really think this matter should really be capable of resolution overall. Thank you.
(Short adjournment.)
Mr Beale.

COUNSEL:Your Honour, we have been having meaningful discussions, they are still in train and, your Honour, we are both of the view that it could be worthwhile to come back at 2 o’clock or 2:15.
HER HONOUR: Look, I seriously have to say I think in light of what’s come out in the trial then on both sides there should be a sensible solution. I will give you the time, I think that is worthwhile.

The trial resumed at 2.21 pm, when counsel for the Crown informed her Honour that the matter had been resolved, and her Honour congratulated counsel on achieving ‘a very successful outcome’. After Mr Holden was re-arraigned the jury returned a verdict of not guilty to murder and guilty in respect of manslaughter. It was accepted by the Crown that the plea of guilty to manslaughter referred to manslaughter by unlawful and dangerous act.

Evidence on appeal

The application for leave to appeal was supported by affidavits affirmed by Mr Holden[3] and by Ms Cotter.[4] Ms Cotter holds Mr Holden’s power of attorney and was in contact with his legal representatives throughout the course of the trial and after the institution of the appeal. With the agreement of counsel for the Crown, Mr Holden and Ms Cotter were called as witnesses and cross-examined.
[3]Mr Holden filed a total of five affidavits, which were affirmed on 19 February 2008, 16 June 2008, 11 August 2008, 25 February 2009 and 26 May 2009.
[4]Two affidavits affirmed by Mary Cotter on 9 April 2008 were filed, the second of which exhibited a number of emails and other correspondence.

Affidavits were also affirmed by Leanne Holden, her daughter Kathy Menich, and Mr Meadows and his wife Sharon. These affidavits contained much material which was irrelevant to the grounds of appeal. Patrick Dwyer, Mr Holden’s instructing solicitor at the trial, wrote a letter to the Court, the contents of which are described below. None of these witnesses were called to give evidence at the hearing of the appeal.

Mr Holden’s evidence
Affidavit evidence

In his affidavit of 19 February 2008 Mr Holden said that on 25 July 2007, after the trial judge said that counsel should be having meaningful discussions, there were four conferences between himself and his legal team. His barrister, Len Hartnett, his solicitor, Mr Dwyer, and Kellie Blair,[5] who worked for Mr Dwyer, were present at the first discussion. At that discussion he told his legal team he was innocent and wanted to continue with the trial and they left to inform the prosecution. They said that the worst sentence he would receive was three or four years’ imprisonment and he could get time served as a minimum.
[5]In his first affidavit he said that these three people were present at the first conference. In his second affidavit he said that only Mr Hartnett and Mr Dwyer were present at the first meeting and that other members of the team joined them later.

At the second discussion they were joined by Mr Dwyer’s wife, Mrs Dwyer, who had ‘previously stood in the dock with [Mr Holden] and helped select the jury’. Again his legal representatives advised him he should plead guilty. He said he was told the minimum sentence could be a bond and with parole he would ‘almost certainly get time served’ and ‘could walk from court’. He said that his legal team had left to tell the prosecutor and the judge that he would not agree to the plea. Similar pressure had been applied to him at the subsequent discussions, despite his assertion that he was innocent and wanted the trial to continue. He had asked his legal team if he could have three or four days to consider whether to plead but was told he had only one hour to decide.

Mr Holden then said that in a phone call on 15 February 2008, Ms Cotter had told him of a conversation between his counsel and the judge in which the judge made the remarks I have already described. His affidavit continues as follows:

32In the third conference with my legal team I was crying, very distressed and confused and told my legal team they were forcing me to take the plea. I also told them I was innocent and did not want to plead guilty to something I was innocent of and it was a fucked situation when an innocent person could go to jail. All four again told me ‘I would almost certainly get time served and walk from jail.’
Mr Hartnett then told me, if I did not take the plea and continued with my murder trial, the judge would not look kindly towards me and likely would instruct the jury against me and I would be found guilty of murder and would get twenty years in jail. The others supported this contention.
33My resistance to what the legal team and the judge wanted me to do was worn down. My will was overborne. Because of my not knowing legal practice and procedure and never seeing a trial with a judge and jury or any interaction between judge and jury, I believed Mr Hartnett and believed the judge would instruct the jury to find me guilty of murder if I proceeded and I would get twenty years in prison. To put it in the vernacular, ‘that was the straw that broke the camel’s back’.
34Because of that belief, the constant pressure from four persons in positions of a perceived and real authority and the mental and physical condition I was in and subjected to, and my fright and fear now instilled in me of being jailed for such a long time I took the plea. I still told them that the justice system is fucked when an innocent person has to plead guilty.

35 My plea was under duress and an involuntary plea.[6]

[6]Mr Holden repeated and provided further details of his complaint that his legal representatives pressured him to plead guilty in subsequent affidavits.

In his affidavit affirmed on 11 August 2008 Mr Holden said that after the third conference, Mr Hartnett then told him he would go and inform the judge that the trial was to continue. Mr Holden said:
Mr Dwyer, Mr Hartnett, Ms Blair and Mrs Dwyer came back and saw me. Mr Hartnett told me he had informed the judge I would not take the guilty plea, and the judge was not happy and the judge would not take ‘no’ for an answer. Mr Hartnett then told me if I did not take the guilty plea this judge would instruct the jury against me to find me guilty of murder, and this judge will give me twenty years when they find you guilty, my legal team all piped in saying they had spoken to the prosecutor and they said if I pleaded guilty the crown will ask for a minimum sentence and ‘I would get time served and I would walk out of court’. I was crying, trembling, very distressed, confused, overwhelmed and scared by the actions, pressure and coercion of the judge and my legal team.
Because of the judge’s interference, continued interference, the coercion applied on me by both the judge and my legal team and the judge’s non impartiality and in not taking ‘no’ for an answer and pressuring for me to do a deal. I broke down under this pressure and agreed to plead guilty to manslaughter.
Both Mr Holden’s affidavits refer to conversations between the trial judge and counsel at which he was not present. In his first affidavit he quoted from Ms Cotter’s notes as to what had occurred in Court between counsel and the judge and said that shortly after making the plea he had told Ms Cotter that he regretted making the plea and did not wish to continue with it and Ms Cotter said she had told Mr Dwyer of this.

He also said in his first affidavit that:

On Friday 27 July 2007, before my plea hearing I told Mr Dwyer I had changed my mind on taking the plea and wanted to continue with my trial. Mr Dwyer told me I couldn’t and then he asked me to sign some documents giving him $90,000 worth of property.
…
After the plea hearing I again told Mr Dwyer I did not want to take the plea.
Mr Dwyer told me I had to wait until the sentencing and then I could appeal on severity of sentence.

He said that he had been visited in prison by Mr Dwyer on 1 August 2007 and had then complained about being pressured to plead guilty and said he wanted a retrial but was again told by Mr Dwyer that he could only appeal against the sentence. He said that within 14 days of being sentenced he had instructed Mr Dwyer to lodge an appeal against conviction, but Mr Dwyer had not done so. He made various complaints about Mr Dwyer’s behaviour. He also said he had spoken to a Mr Carney at Victoria Legal Aid about appealing against sentence on 18 September 2007, three weeks before he was sentenced. He said he had not asked Mr Carney about withdrawing his plea to manslaughter, because he did not know he could do so until after he was sentenced on 12 October 2007.

On that day Mr Holden said that Ms Cotter was told by Mr Hartnett after he had been sentenced that he could have withdrawn his plea, at any time until he was sentenced. Mr Holden said:

I was never informed and did not know I could withdraw my guilty plea to manslaughter at any stage between plea day 25 July 2007 and sentence day 12 October 2007 and at all times I was informed by my legal representatives I could only appeal against sentence.

In his affidavit affirmed on 16 June 2008 Mr Holden repeated his account of telling Mr Dwyer on 27 July 2007, before his plea hearing, that he wanted to withdraw his guilty plea. He also said that he had spoken to Mr Hartnett in the courtroom and been told ‘let’s see what the judge has to say’. He again said that none of his legal representatives had told him that he had a right to apply to the trial judge to change his plea. He said he approached another solicitor named Brent Casey asking him to lodge an application for leave to appeal against conviction but was unable to obtain legal aid funding for him to act.

In his affidavit affirmed on 11 August 2008 Mr Holden also said that Ms Cotter told him that on the morning of 27 July 2007, before the plea hearing began, she had told Ms Blair that Mr Holden did not ‘want to continue with [his] guilty plea’. He also said that he had written a letter to Mr Dwyer on the evening of 25 July 2007 ‘telling him I was innocent and did not want to continue with the guilty plea’. He said that letter was posted the following day.

In the 11 August 2008 affidavit Mr Holden also said that now that he was in possession of dated documents he wished to correct dates in his earlier affidavits. He said the conversation with Mr Dwyer in which he was asked to sign documents ‘giving him $90,000 worth of the property’ occurred on 25 July 2007 (the day he had pleaded guilty) and not on 27 July 2007 as he had earlier deposed.

In his affidavit affirmed on 25 February 2009, Mr Holden alleged that prior to his trial, Mr Dwyer had told him on several occasions that he had been refused legal aid and that he needed to be paid $20,000 before he would represent Mr Holden at his committal mention. Mr Holden said that his sister, who was assisting him with the negotiations, had given Mr Dwyer three payments of $15,000, because he believed that legal aid funding had been refused and that Mr Dwyer had told him he would represent him at the trial for an additional $90,000. He said:

That Patrick Dwyer took my sister into a room in the court building after my signing, (as my sister missed the train the day I signed) and deceived my sister Leanne Holden into witnessing/signing the Equity form, when she had not witnessed my signing of the Equity form.
That the date on the Equity form, is the wrong date on it, it was not 16 July 2007, Pat Dwyer never visited me at the Melbourne Assessment Prison on the 16th, and my trial started on 17 July 2007, Pat Dwyer has never given me a copy.
That the agreement, with Pat Dwyer for financing for legal representation of my case was originally $20,000.00 later reduced to $15,000.00 and the $90,000.00 equity on my property. (everything I have) (only because I believed [Patrick Dwyer’s statement that] Legal Aid had been refused and this was the only way I could have [l]egal representation for my court case).
…
That during a meeting with Pat Dwyer when I was being pressured and coercion was being placed on me to take the guilty plea; Patrick Dwyer told me it would cost $35,000.00, if I continued with my trial.
…
That Patrick Dwyer told me the judge will ask me if I had come to the decision to plead guilty on my own, and instructed me that if I wanted the deal to proceed and walk from court to answer yes to the judge, Patrick Dwyer told and instructed me of these this [sic] on several occasions.

One of the exhibits to that affidavit was a document signed by Mr Holden charging two properties with the payment of all legal costs, counsel’s fees and disbursements. As noted above, that document was dated 16 July 2007. Mr Holden alleges that the date was incorrect and that he signed it in the holding cells on the day when he pleaded guilty to manslaughter, under the threat of having his representation withdrawn if he did not do so.

In his affidavit of 26 May 2009 Mr Holden again said that he had told Mr Dwyer and Mr Hartnett before the plea hearing began on 27 July 2007 that he had changed his mind about pleading guilty and that he was told he could not do so. He deposed:

That at no time did Mr Dwyer, Mr Hartnett or my other legal representatives advise me that I had a right to make an application to the trial judge to change my plea, that if I gave instructions that I wanted to pursue such an application they were conflicted and would have to withdraw from the case and I would need to consult and instruct fresh counsel to make the application.

Attached to that affidavit was a photocopy of a letter dated 29 July 2007 which Mr Holden said he had sent to his solicitor. The letter read as follows:

Pat I am writing this letter as I am innocent, if the judge had have heard all the witness’s she would have known I am not guilty. My main witness’s were still to come. I don’t want to continue with my guilty plea, I want my trial to continue, or have a re-trial, or appeal against conviction, and let everything come out. I need Pat Torney and Micks [sic] carers Steve and Graham.
I am innocent Pat.
Thank you.
Cross-examination

At the hearing of the appeal Mr Holden was cross-examined about his statement in his affidavit of 19 February 2008 that after his legal team had spoken to him on two occasions they ‘left to tell the prosecutor and the judge that I would not agree to the plea’. It was put to him that he had said that his counsel told him he had spoken to the judge in his absence and he said that he was told by Mr Hartnett that the judge ‘would not take no for an answer’. It was put to him that the transcript showed that all the exchanges between counsel and the judge occurred in open court and there was nothing in the transcript which supported his account. He said he only recalled going back into court on one occasion and said he was sure that his counsel said he had spoken to the judge and had told him that the judge would not take no for an answer.

He was also asked to explain why he had originally said that Mr Dwyer had asked him to sign the document charging his property on 27 July 2007 (i.e the day of the plea hearing) and later said this event had occurred on 25 July 2007 (i.e. the day he pleaded guilty). He denied that this was because other people had told him about the date when that occurred and said that he knew that he had signed that document on the ‘guilty plea’ day.

Mr Holden was cross-examined about the statement in his 25 February 2009 affidavit that Mr Dwyer had told him how to answer the judge’s questions about the plea and that he had followed these instructions. It was put to him that the transcript showed that the judge did not put questions of this kind to him and he said that ‘I must have it wrong’.

He was also cross-examined about his statement that he had written to Mr Dwyer on 25 July 2007 saying that he did not wish to plead guilty. Mr Holden said that he had written two letters, one dated 25 July 2007 and one dated 27 July 2007 after he had pleaded guilty. It was put to him that he had said that he had written a letter to Mr Dwyer on 25 July 2007 indicating that he did not wish to plead guilty. However, the only letter in evidence was actually dated 29 July 2007. Mr Holden maintained that he had written two letters to his solicitors, one of which was the 29 July 2007 letter. The other was the 25 July 2007 letter, which he alleged he had initially thought was written on 27 July 2007 and which he had not annexed to the affidavit.

It was also put to him that in his affidavit affirmed on 19 February 2008, he said that ‘on Friday 27 July 2007, before my plea hearing, I told Mr Dwyer I had changed my mind on taking a plea and wanted to continue with the trial’. It was put to him that in a later affidavit he had said that this discussion occurred on 25 July 2007. He denied that he had changed this date after discussing the matter with Ms Cotter.

It was also put to Mr Holden that he had said that no legal aid application had been made, though there was in fact a legal aid application dated 16 July 2007. It was also put to him that the document creating a legal charge over his property was dated 16 July 2007, though he had deposed that he had signed it on the date of the plea.

Ms Cotter’s evidence

In her affidavit of 9 April 2008 Ms Cotter complained that her Honour had given insufficient weight to Mr Holden’s fear of the victim in sentencing Mr Holden. She then said that while Mr Holden was in the cells considering whether to plead guilty she had a discussion with Mr Hartnett in which she expressed the view that he should not accept the plea. Mr Hartnett told her that he was concerned about Mr Holden testifying. However Ms Cotter said that the main reason Mr Hartnett said Mr Holden should accept the plea was that the judge thought he should do so and that if he did not, her Honour would be unfavourably disposed to Mr Holden, her jury direction would make it difficult for him to make out self defence and that he could end up being convicted for murder and serving a 20 year sentence.

Ms Cotter said she was told that if Mr Holden pleaded guilty then at worst the sentence would be three to four years and that he had a good chance of ‘walking from the Court with time served’. She said that she had a phone call with Mr Holden either the same afternoon or the next day in which he expressed regret about pleading guilty and claimed that he had been pressured to do so. She also said that she had received another phone call from Mr Holden later in the week after his guilty plea in which he said he had been told that he should now expect a sentence of three to four years and that if he received a higher sentence he could appeal. Mr Holden told her that he had said to Mr Dwyer that he should not have pleaded guilty because he acted in self-defence. She said:

That Holden’s legal team never once at any point told Mr Holden or myself that he had the option of withdrawing the guilty plea, particularly in light of the fact that the indication of sentence he had been given when making the decision on the plea had subsequently changed a great deal.
That during the six weeks beginning almost immediately after the acceptance of the plea on 25 July 2007 until Mr Holden’s sentencing on 12 October 2007 I visited and telephoned a number of legal centres and independent lawyers trying to ascertain whether there were any grounds for withdrawal of the guilty plea, to no avail as no-one would give me any advice, with the reason given that I was not the client, hence both I and Mr Holden remained ignorant of the fact that no grounds were even needed until it was too late.

Ms Cotter’s second affidavit affirmed on that day annexed a number of emails to Mr Holden’s legal advisers between 21 August 2007 and 31 January 2008. These made various suggestions about the circumstances of the killing. In an email to his legal advisers on 22 August 2007, she referred to the fact that an unknown prison officer had told Mr Holden that ‘he was crazy to have pleaded guilty’.

Ms Cotter was cross-examined about her conversation with Mr Hartnett on 25 July 2007. She was asked when she had written out her account of her conversation and she said she could not say. However, she said that Mr Holden had spoken about his unwillingness to plead guilty ‘within a day or two’ of pleading guilty and that he had phoned her that day or the following day to tell her that he regretted it. He had told her about his conversation with the prison officer at about that time. She said she had told him that she would do everything she could to find out if he had grounds for withdrawing the plea.

Ms Cotter was taken through the emails she sent to Mr Holden’s legal representatives, annexed to her second affidavit affirmed on 9 April 2008. It was put to her that she had not said in any email that Mr Holden believed he was not guilty and that he wanted to change his plea. She said she had raised this in conversation with his legal advisers on 27 July 2007, on the morning of his plea hearing, but that she had forgotten to include this in her affidavit. Later in cross-examination she said that she did not ask Mr Holden’s legal team if he could withdraw his plea, because she had ‘completely lost faith’ in them.

In re-examination Ms Cotter was asked about her statement in her affidavit that she had attempted to get legal advice about whether Mr Holden could withdraw his guilty plea. She said she had contacted at least a dozen lawyers and gone to the Fitzroy Community Legal Centre, where she had been told that she could not get any advice about Mr Holden’s ability to withdraw his plea, because she was not the client. She said she did not realise Mr Holden could have withdrawn his plea until after he had been sentenced.

Counsel’s submissions

Mr Holden’s counsel submitted that a miscarriage of justice had occurred because Mr Holden did not make a free and informed choice to plead guilty. He submitted that Mr Holden’s will was overborne because of the pressure brought to bear on him by the trial judge and by his legal representatives to plead guilty to manslaughter, and his mental state and financial circumstances at that time. The fact that he had done so within three hours of the judge adjourning the matter for discussions between counsel was said to support Mr Holden’s claim that he had been coerced to plead guilty to manslaughter, despite the fact that he was innocent of that offence.

Counsel also submitted that Mr Holden’s history of depression and other mental health problems made him susceptible to pressure. In support of that claim counsel relied on the fact that Mr Holden had spent a period in October/November 2005 in the Alexander Bayne Psychiatric Hospital, following a suicide attempt. Shortly after Mr Holden’s arrest in March 2006, he had been transferred from the Melbourne Assessment Prison to the Thomas Embling Psychiatric Hospital (‘Thomas Embling’), where he had been a patient from 29 March 2006 to 7 June 2006. He spent a further period in Thomas Embling from 27 April 2007 to 9 July 2007, shortly before the trial began. He had also spent a period of three to four months in the acute assessment unit at the Melbourne Assessment Prison. Finally, counsel referred to Mr Holden’s allegation that whilst in the cells on the day that he had pleaded guilty, he had been subjected to pressure by his solicitor, Mr Dwyer, to sign a form giving Mr Dwyer a lien over his property to cover his legal costs.

Counsel further submitted that even if Mr Holden had freely pleaded guilty, there had been a miscarriage of justice because he had wished to withdraw that plea shortly after it was made, but had been advised that he could not do so.

Counsel for the Crown submitted that neither the judge’s remarks, nor counsel’s advice, amounted to pressure which had deprived Mr Holden of the free choice to plead guilty to manslaughter. The judge’s suggestion that the Crown and the defence ‘should be having meaningful discussions’ had emerged in response to Meadow’s evidence at the voir dire. The judge had expressed no views as to the strength or weakness of the Crown or defence case.

Counsel for the Crown submitted that Mr Holden’s legal representatives were entitled to give strong advice that it would be advantageous to Mr Holden to plead guilty, particularly having regard to the likely failure of self defence because of the number of blows inflicted on the victim. Further Mr Holden’s evidence that his counsel had seen the judge in his absence and advised him that the judge wanted him to plead guilty was not credible, because the transcript showed that discussions about a possible plea occurred in open court in the presence of Mr Holden. In addition, Mr Holden had asserted that he had been told by Mr Dwyer that he would be asked by the judge whether he freely chose to plead guilty and had in fact done so. The transcript showed that the judge had not asked this question.

Counsel for the Crown pointed to many other inconsistencies in Mr Holden’s evidence. These included inconsistencies relating to whether he had told his solicitor that he did not want to plead guilty before or after he pleaded, when he signed the agreement giving his solicitor a lien over his property, and whether he had instructed his solicitor to seek leave to withdraw his plea. Counsel also submitted that Ms Cotter’s evidence did not support the allegation that Mr Holden had been pressured into pleading guilty or that he had made efforts to withdraw his plea subsequently.

Counsel submitted that Mr Holden simply regretted pleading guilty to manslaughter because he received a higher sentence than he anticipated. He contended that even if Mr Holden had sought leave to withdraw his plea before sentencing, her Honour would not have exercised her discretion in his favour. Accordingly, even if Mr Holden had been unaware that he might have changed his plea, there was no miscarriage of justice.

So far as Mr Holden’s mental state was concerned, counsel for the Crown relied on the opinion of Dr Walton that Mr Holden was fit to stand trial on 6 July 2007 and was discharged from Thomas Embling on 9 July 2007.

Was the plea voluntary?

In R v Forde[7] Avory J said that:

A plea of [g]uilty, having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it,[8] or (2) that upon the admitted facts he could not in law have been convicted[9] of the offence charged.[10]

[7][1923] 2 KB 400.

[8]For examples of the application of the principle that a plea of guilty must be set aside if the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, see Liberti (1991) 55 A Crim R 120; Vella (1984) 14 A Crim R 90; Ferrer-Esis (1991) 55 A Crim R 231; Gower v Ross [1959] SASR 278.

[9]For examples of the application of the principle that a plea of guilty must be set aside if the appellant could not have been convicted of the offence, see R v Tait [1996] 1 VR 662, 665-6; R v GJB (2002) 4 VR 355. For cases in which it was held not to apply see R v Parsons [1998] 2 VR 478, 482-483 and R v El Kotob (2002) 4 VR 546, 566 (O’Bryan AJA).

[10][1923] 2 KB 400, 403.

It is now well-established that an appellate court’s power to set aside a guilty plea is not limited to the situations described in R v Forde,[11] and that a plea may be set aside if the circumstances in which the appellant pleaded guilty have given rise to a miscarriage of justice.[12] In KCH[13] Ipp AJA commented that:

There is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own circumstances.[14]

[11]R v Murphy [1965] VR 187, 190 (Sholl J).

[12]R v Coffey (2003) 6 VR 543 and see Crimes Act 1958, s 568(1).

[13](2001) 124 A Crim R 233.

[14]Ibid 239.

Although a plea of guilty will be set aside if it was made in circumstances resulting in a miscarriage of justice, ‘there is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty’.[15] The public policy argument in favour of this approach is particularly powerful, where, as a result of a negotiated plea, the offender has received the benefit of a directed acquittal on a more serious offence. Both counsel conceded that if Mr Holden was presented on a trial for murder, he would be entitled to rely on the defence of autrefois acquit.[16]
[15](2003) 6 VR 543, 546. See also R v Liberti (1992) 55 A Crim R 120, 122 (Kirby P), R v O’Neill [1979] 2 NSWLR 582; R v Sagiv (1986) 22 A Crim R 73, 81.
[16]See also R v Storey (1978) 140 CLR 364; Pearce v R (1998) 194 CLR 610.

In considering whether a miscarriage of justice has occurred, Victorian courts have been reluctant to find that a miscarriage of justice has occurred simply because a person who has pleaded guilty asserts that they were not in fact guilty of the relevant offence.[17] In R v El Kotoband Hijazi[18] O’Bryan AJA said:

I consider that an understanding, arrangement or agreement having been reached between the Crown and the appellants …, it is not open to the appellants to withdraw from the plea agreement by applying for leave to appeal against conviction unless they satisfy the very exceptional circumstances set out in R v Stewart.[19]

[17]See for example R v Stewart [1960] VR 106; R v GJB (2002) 4 VR 355, 362 (Winneke P); for an example of a case where the accused could not lawfully have been convicted because of a time limit for prosecutions see R v Tait [1996] 1 VR 662.

[18](2002) 4 VR 547, 566. See also Vincent JA at 561.

[19][1960] VR 108.

In R v Murphy[20] the Court of Criminal Appeal refused to extend time to allow the applicant to give notice of an appeal against conviction resulting from her plea of guilty. The applicant claimed that her conviction should be set aside because she was in fact innocent of the offence, but had been subjected to pressure by her counsel to plead guilty. She alleged that her counsel had led her to believe that if she pleaded not guilty she would inevitably be convicted and would lose custody of a child she hoped to adopt, but that if she pleaded guilty she would not be sent to prison and might be able to keep the child.
[20]R v Murphy [1965] VR 187.

In their joint judgment Herring CJ and Adam J said that the applicant’s claim that she was in fact innocent:

… appears to be an invitation to this Court to disregard the plea of guilty and to determine for itself, without the aid of a jury, the guilt or innocence of the applicant … It would, we think, be a sufficient answer that, until grounds are shown in accordance with the rules formulated in R v Forde, supra, for disregarding the plea of guilty, it is not the function of an appellate Court to try the issue of guilt or innocence.[21]

[21]Ibid 188 (citations omitted).

On the basis of the evidence at the committal and the evidence given by the applicant on the hearing of the application, Herring CJ and Adam J were satisfied that a prima facie case of guilt had been made out and that it would therefore have been open to a jury to have convicted the applicant. They said that even if the applicant had been motivated by her belief she would receive a non-custodial sentence and that this would assist her to adopt the child, her guilty plea should not be set aside because she had been perfectly well aware that in making it she was admitting her guilt of the offences charged. There was no fraud or duress which would provide a basis for affording her any relief.

Sholl J found that counsel had left the applicant ‘in no doubt that if she pleaded not guilty she would nevertheless be convicted and would in the end be very much worse off than if she pleaded guilty’. Nevertheless his Honour said that, in the end, it was the applicant’s own decision to do so. He said that if he had thought that the applicant was ‘probably innocent’ and that she had pleaded guilty without reference to any consciousness of guilt, he would consider that there had been a miscarriage of justice which required the ordering of a retrial. However, in the circumstances of the case, he concluded that the most probable explanation for the applicant’s guilty plea was that she believed that she would receive a reduced sentence.

The question in this case is, therefore, whether a miscarriage of justice[22] has occurred because Mr Holden did not consider himself guilty of manslaughter, but pleaded guilty as a result of his fragile mental condition, the comments made by her Honour, the pressure brought to bear on him to plead guilty by his legal representatives and/or some combination of these circumstances. I deal with each of these matters in turn.
[22]See R v Coffey (2003) 6 VR 543, 545-6 (Callaway JA, with whom Buchanan and Eames JJA agreed) and the similar view expressed in New South Wales in KCH (2001) 124 A Crim R 223, 238.

Evidence as to Mr Holden’s mental condition

Reference has already been made to Mr Holden’s history of depression, his treatment in the Alexander Bayne Centre, Bendigo in October to November 2005 and his stays in Thomas Embling and in the Acute Assessment Centre at the Melbourne Assessment Prison after his arrest and before he pleaded guilty.

In his affidavit affirmed on 19 February 2008 Mr Holden said that he had received medical advice that he ‘had the brain of an 80 year old alcoholic’ and was informed by Dr John Lloyd that ‘the cyst and atrophy in my frontal lobe affected my decision-making and organisation skills.’ That claim is not supported by the evidence.

Mr Holden was admitted to Thomas Embling on 29 March 2006, shortly after his arrest. He was discharged to the Acute Assessment Unit at the Melbourne Assessment Prison on 7 June 2006. His discharge summary from Thomas Embling dated 14 June 2006 noted that:

Graham has had a long history of depression since age 14, which has occasionally required antidepressant treatment. Despite an apparent suicide attempt at age 14, there has not otherwise been a prominent history of self-harm ideation until recently.
In October 2005 he was admitted to Bendigo Psychiatric Ward following a suicide attempt by mini overdose which did not come to medical attention. There his descriptions of feeling pursued by members of the criminal underworld and his reports that he had stolen gold worth millions of dollars were interpreted as persecutory and grandiose beliefs respectively (please note that at this time Graham did not disclose he had murdered [Torney] some 8 months previously).
Graham was diagnosed with schizophrenia and treated with risperidone, though this diagnosis was not firmly held by his community treating team.

It was noted that while he was at the Alexander Bayne Centre in Bendigo a routine CT brain at Bendigo revealed frontal cerebral atrophy which was referred to Professor Lloyd for assessment. The summary continued as follows:

From the beginning of the admission Graham’s presentation was not consistent with the severity of his self-reported symptoms. For example, he showed incongruous, reactive, euthymic affect; his reports of severe suicidal intention were at odds with his obvious displays to staff of various self-harm implements he had ‘hidden’ from them; he was noted to spend large amounts of time in ward activities with obviously good concentration and nothing of the tremor so evident during interviews; sleep charts revealed his reports of insomnia were exaggerated.
Graham’s affect and behaviour did deteriorate on several occasions during the admission, apparently related to stressors such as reports his family had been approached by underworld figures, or the funeral of the victim. At this time he would experience objectively observed poor sleep and appetite and make superficial lacerations to his legs which he claimed were suicide attempts. Although he did appear to have increased anxiety of an expected intensity at these times, his reports of suicidality and severe depression were not consistent with observed affect.
Graham continued to complain of nightmares and intense, vivid mental images of the murder. By early May, however, Graham began to complain of hearing [Torney]’s voice threatening him and commanding him to harm an enemy of [Torney’s]. Graham also described visual hallucinations of [Torney] leering at him and physically threatening him. Graham was highly inconsistent in describing these quasi-psychotic phenomena, eg claiming they had been present for twelve months even though he had not reported them on admission, and displaying obvious suggestibility when questioned about their details. In addition, Graham was never observed to be responding to hallucinations.
A repeat CT brain was reported as showing mild bifrontal atrophy with no change in appearances from the November 2005 scan. Graham displayed no obvious evidence of cognitive impairment or memory difficulties on the ward.
Towards the end of admission, Graham began to report that he was feeling better and less suicidal, though he continued to claim a significant risk of self-harm with a very low mood (these accounts seemed exaggerated). His benzodiazepine sedation was tapered and ceased. His appetite, though initially poor, certainly began to improve towards the end of the admission with associated weight gain.
Because of Graham’s inconsistent, exaggerated, and atypical account of his symptoms and clinical state, it was decided to return Graham to prison.
…
Final Diagnosis
1.Adjustment reaction with mixed anxiety and depression (DD: organic anxiety/depression).
2.Some possible sub-threshold PTSD symptoms.
3.Cluster B personality traits (antisocial, histrionic) (DD: organic personality disorder).
4.Probable malingering.
5. Undiagnosed mild bi-frontal cerebral atrophy.

A neuropsychological report which followed up the effects of Mr Holden’s mild cerebral atrophy referred to his previous assessment by Dr Lloyd. It reported that:

Dr Lloyd did not identify any history of past significant trauma, cerebral infection, chronic alcohol abuse or family history of dementia.
Dr Lloyd found no abnormalities on a neurological examination. A brief cognitive assessment revealed good orientation, average auditory-verbal attention span and working memory abilities, average verbal fluency and abstract reasoning, and intact mathematical reasoning. Graham’s memory functions were low average to mildly impaired.
Dr Lloyd noted that Graham’s presentation was not consistent with a Korsakoff’s-type frontal executive dysfunction. He recommended a full neuropsychological assessment to determine the effect, if any, of the frontal atrophy of Graham’s cognitive abilities.

The neuropsychological report concluded that:

Graham currently demonstrates age-appropriate abilities in all domains. Despite his concerns regarding attention and memory, abilities in those areas were intact. Deficits in the executive system which might be expected given the degree of frontal atrophy were not detected, with the exception of some poor planning on one task.
While it may be that Graham would have significant secondary gain in feigning cognitive deficits, his intact abilities and valid performance on the [Test of Memory Malingering] indicates that the current assessment was a reliable measure of his abilities.
Overall, there is no compelling evidence of cognitive difficulties in line with the relatively severe degree of atrophy on the CT scan.

While Mr Holden was on remand at the Melbourne Assessment Prison he attempted to commit suicide. After treatment at St Vincent’s Hospital, he was transferred on 27 April 2007 to Thomas Embling. He was moved back to the Melbourne Assessment Prison on 9 July 2007, shortly before his trial commenced. The Discharge Summary prepared on that date said:

It was thought that psychological input would be useful to assist with his anxiety and negative cognitions. The psychologist spent about a month [in] bi-weekly sessions with Mr Holden, but although she found that he was keen for the sessions and stated that he found them very useful, she found that he did not do any of the set homework (eg thought diary) and continued to utilise diazepam [on demand] rather than try any relaxation techniques. He then began to avoid her sessions, preferring to attend YMCA or the drop-in centre. He also avoided the ‘Keeping Calm’ group which would have been useful.
Due to bed pressure and stabilisation of his mental state, Mr Holden was transferred back to MAP. He was compliant with his medications. His mood was ‘ok’, with reactive appropriate affect and [he was] as usual pleasant and cooperative.

The Report concluded that:

Mr Holden is at moderate risk of harm to himself due to past history of self harm and overdose and some ongoing anxiety symptoms in relation to his safety.

Finally reference should be made to the report of Dr Lester Walton dated 10 July 2007. Dr Walton expressed the opinion that prior to his admission to the Alexander Bayne Centre in October/November 2005 Mr Holden was smoking large quantities of cannabis and that ‘his state of fear’ about the possible consequences of being pursued by Torney’s associates ‘moved from a situation of quite marked hypervigilance and his being easily startled, to a point where he was hiding up trees, to a situation where he was frankly psychotic, he experiencing hallucinations of the deceased pursuing him’.

He noted that Mr Holden was ‘a man of normal intelligence and he remains thoroughly cognitively intact’, though he suffered from depression.

With the qualification that he had not examined Mr Holden’s medical records, Dr Walton gave a provisional psychiatric diagnosis of a previous drug-induced psychosis complicated by a more enduring depressive disorder. He said that Mr Holden had ‘significant residual anxiety and depressed mood’ and that:

… his psychiatric prognosis is reasonably favourable. While it is correct to state that he has suffered from a serious bout of mental disturbance of psychotic proportions, that has arisen for the first time in his life latterly and in a rather extraordinary context. There is every prospect that Mr Holden should fully recover and not experience any further relapses, although precisely what the long-term prognosis is must remain a little uncertain at this point.

Dr Walton considered that Mr Holden would not qualify for the defence of mental impairment.

The evidence set out above supports the view that Mr Holden has suffered from serious depression from time to time and has attempted suicide, but that he does not have significant cognitive difficulties. His history of depression is a relevant, but not decisive factor in determining whether he freely chose to plead guilty in circumstances where his counsel advised him to do so. It is also appropriate to take account of the reference in the first Thomas Embling Discharge Summary to Mr Holden’s inconsistent, exaggerated, and atypical account of his symptoms and clinical state.

Other matters which may have affected Mr Holden’s decision to plead guilty

Counsel for Mr Holden conceded that, of itself, the learned trial judge’s intervention did not amount to pressure resulting in a miscarriage of justice, but submitted that when combined with other factors it could have deprived Mr Holden of his freedom of choice in deciding whether to plead guilty.

Counsel’s concession was appropriate. Her Honour’s intervention occurred after Mr Meadows testified that Mr Holden told him before his arrest that he had had ‘a fight’ with the deceased. It was apparent from Mr Meadows’ cross-examination that his evidence might not greatly assist Mr Holden. Her Honour’s later comments that ‘the matter should be capable of resolution‘ and that there should be ‘a sensible solution’ did not place undue pressure on Mr Holden to plead guilty. For the reasons discussed below, it may well have been in Mr Holden’s interests that such discussion occurred.

Mr Holden also alleged that his will was overborne by pressure brought to bear by his legal team. He said that his lawyers told him that he was at risk of being convicted of murder and likely to receive a lighter sentence for manslaughter if he pleaded guilty to that offence. Ms Cotter deposed that Mr Hartnett told her that he was concerned about Mr Holden giving evidence on his own behalf. Mr Holden’s testimony on the hearing of the appeal suggests that it may have been unwise for him to do so.

There is nothing in the circumstances of this case suggesting that counsel’s advice to Mr Holden that he should plead guilty to manslaughter, and would receive a lighter sentence if he did so was careless or wrong.[23] The evidence set out above indicates that it would have been well open to a jury to convict Mr Holden of manslaughter. Further, assuming that Mr Holden was advised by counsel that he was at some risk of being convicted of murder, that advice was not unrealistic.
[23]Compare Wilkes (2001) 122 A Crim R 310, where the public defender conceded he had made a mistake in his assessment of the merits of the defence case and in advising the applicant, who had protested his innocence, to plead guilty.

Mr Holden’s claim of self-defence was raised very late and was inconsistent with what he said in his police interview, in which he explicitly denied that he had killed Torney in the course of a fight. The conversations recorded while he was on remand were self-serving and any jury is likely to have regarded them sceptically.

In R v Zecevic v DPP (Victoria)[24] the High Court set out the test for self defence as follows:

It is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he [or she] did. If he [or she] had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he [or she] is entitled to an acquittal.[25]

[24](1987) 162 CLR 645.

[25]Ibid 661 (Wilson, Dawson and Toohey JJ).

The jury might well have taken the view that, even if they accepted that Mr Holden was attacked by Torney, he could not have believed on reasonable grounds that it was necessary in self-defence to do what he did, in light of the forensic evidence about the severity of the injuries which killed Torney.[26]
[26]The killing occurred before Crimes Act 1958, s 9AD (providing for the offence of defensive homicide) which was introduced by the Crimes (Homicide) Act 2005, came into operation on 23 November 2005. There is no provision applying the section to a killing before the legislation came into operation.

If a guilty plea is freely made it will not be set aside simply because an accused was strongly advised to plead guilty. In Meissner v The Queen,[27] Brennan, Toohey and McHugh JJ said:

Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
Conduct is likely to have the tendency to interfere with a person’s free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused’s freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution. [28]

[27](1995) 184 CLR 132.

[28]Ibid 143-144. Note that this was said in the context of an appeal against conviction of the offence of attempting to pervert the course of justice.

Similarly, in R v Murphy[29] Herring CJ and Adam J commented that:

The strength of the advice given would appear to be a matter between the applicant and her chosen legal representative, and in the absence of fraud, duress or the like, which is not suggested, cannot we think, on any recognised principle afford ground for relief in this Court … [I]t is the duty of counsel to advise his clients of the course which he honestly believes in the exercise of his judgment to be in their own interests in all the circumstances, and it is for his clients to accept or reject that advice and, if thought fit, change their counsel. Furthermore there would appear to be the strongest reasons based on policy for refusing to allow an appeal from a conviction based on a plea of guilty merely because the sentence of the Court has turned out to be more severe than an accused was led to expect.[30]

[29]R v Murphy [1965] VR 187.

[30]Ibid 189.

In the circumstances of this case the advice given to Mr Holden could ‘reasonably be regarded as intended to protect or advance’ his legitimate interests having regard to the risk that he would be convicted of murder or alternatively of manslaughter.

Mr Holden claims that he believed that his counsel had spoken to the judge in his absence and pleaded guilty because he believed that the judge had told counsel he should do so. In his affidavit of 19 February 2008 he deposed that in his third discussion with his legal team Mr Hartnett told him that:

… the judge would not look kindly towards me and likely would instruct the jury against me and I would be found guilty of murder and get twenty years in jail. The others supported this contention.

In his affidavit affirmed on 11 August 2008 he said that ‘Mr Hartnett told me that he had twice informed the judge that I did not want to take the guilty plea and the judge wanted me to do a deal.’ He said that after he had refused to do so Mr Hartnett ‘then told me he would inform the judge’ and his legal team left to do so. He deposed that Mr Hartnett returned and told him that ‘he had informed the judge I would not take the guilty plea, and the judge was not happy and the judge would not take “no” for an answer.’ He also alleged that Mr Dwyer falsely told him that he was not entitled to legal aid and induced him to execute documents charging his property in favour of Mr Dwyer at the same time that he was considering whether he should plead guilty. If these conversations did occur they would have increased the pressure on Mr Holden to plead guilty.

There is no evidence that there was any communication between Mr Holden’s counsel and the judge, other than the discussion which occurred in Mr Holden’s presence in open court. It is however not impossible that Mr Holden believed that his counsel did communicate with the judge in his absence. If he was led by counsel to believe that counsel had communicated with the judge in his absence and that the judge had said what was attributed to her, this could have affected his freedom of choice about whether or not to plead guilty.[31]
[31]See for example KCH (2001) 124 A Crim R 233.

Such a situation occurred in KCH,[32] in which the appellant was charged with two sexual offences counts in the alternative. After initially pleading not guilty to both counts he changed his plea on the less serious count to guilty, with the acceptance of the Crown. He later appealed against his conviction, claiming that his legal representatives had told him that the judge had said in a meeting with counsel in chambers that it was possible that he might be convicted on the more serious count and would certainly (or probably) be convicted on the lesser charge, to which he should plead guilty.
[32](2001) 124 A Crim R 233.

The New South Wales Court of Criminal Appeal accepted that the trial judge had not in fact made such statements. It was also accepted that on the basis of evidence led by the Crown the appellant was in jeopardy of being convicted on the main count[33] and that the evidence against him on the alternative count was ‘very strong’.[34]
[33]Ibid 238.
[34]Ibid 237.

Ipp AJA (with whom Sperling J concurred) found on the facts that the appellant had resisted pleading guilty for some time, despite advice that the trial was going badly for him, but that he then decided to do so. He was told of the judge’s alleged views after he had made that decision.[35] Nevertheless the majority considered that the communication of what were said to be the judge’s views to the appellant had deprived him of the freedom to choose whether or not he should maintain his decision to plead guilty. This was the case even although he also had other reasons for pleading guilty.[36] Ipp AJA said that:
[35]Ibid 246. Ipp AJA did not find that the trial judge’s views influenced his original decision to plead guilty. Hulme J reached a similar view on the facts (at 254-255).
[36]Ibid 248.

The effect of advice as to the prospects of a defendant being found guilty, given by a person cloaked with the full power of judicial office, who is presumed to have deep knowledge and understanding of the law and to be entirely neutral, is incalculable. For an accused person, whose liberty is in immediate jeopardy, advice from such a source would carry immeasurable weight and would be very difficult to resist. The ordinary consequence will be that such advice will be regarded as having overborne the free will of the defendant and the integrity of the plea of guilty will be regarded as irretrievably tainted.
In my opinion, a guilty plea so brought about is an irregularity or flaw in the conduct of the trial so fundamental that it goes to the root of the proceedings and, of itself, will amount to a substantial miscarriage of justice. In such a case the appellate court is not required to determine if a conviction would have been inevitable and the relative strengths and weaknesses of the prosecution and defence cases become irrelevant: Wilde v The Queen.[37] See in this regard R v Turner[38] where a similar situation arose and Lord Parker CJ in giving the judgment of the court said (at 326):
“[Although the appellant] was warned that the choice was his, once he felt that this was an intimation emanating from the judge, it is really idle in the opinion of this court to think that he really had a free choice in the matter.”
… In my opinion, if it is found that the decision to plead guilty was materially influenced by incorrect advice that the judge had expressed views of the kind alleged in this case, improper pressure is established and a finding of a miscarriage of justice must inevitably be made.
A different conclusion appears to have been reached in Pinhassovitch,[39] although the facts of the case may be distinguishable. With respect, however, if Pinhassovitch is to be regarded as being on all fours with the present case, I would not follow it.
I should also mention Boyd.[40] In this case the trial judge was asked by the Crown Prosecutor in open court but in the absence of the jury what course he would adopt in regard to sentencing the accused. The judge said that if the accused had prior convictions, were he to be convicted he would ‘certainly go to gaol on a full time basis’. His Honour went on to say:
‘If there is a plea forthwith, I would consider a penalty short of a full-time custodial sentence.’
The appellant contended that this observation constituted undue pressure and he was thereby deprived of the requisite freedom of choice.
Powell JA (with whom Hulme and Dowd JJ agreed) described the trial judge's observation as ‘unfortunate’ but did not regard the statement in the particular circumstances as being undue pressure. Hulme J agreed with Powell JA and remarked that even if he were persuaded that the appellant's plea of guilty was entered otherwise than through a consciousness of guilt, it did not follow that the appeal should be allowed and the appellant permitted to withdraw his plea ...
In my opinion, Boyd is to be distinguished from the present case. There is a significant difference between an accused person being told that the judge, at the parties' request, had expressed an opinion as to the prospects of a jail sentence should the appellant be convicted, and an accused person being told that the judge had advised that he might be found guilty on one charge and would probably be found guilty on another. [41]

[37](1988) 164 CLR 365, 373.

[38][1970] 2 QB 321.

[39](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Crockett and O’Bryan JJ, 7 February 1994).

[40][2000] NSWCCA 110.

[41](2001) 124 A Crim R 233, 239-40.

Accordingly Ipp AJA held that there had been a miscarriage of justice and that the conviction should be set aside. Sperling JA agreed.

The dissentient, Hulme J, said that the appellant had initially freely chosen to plead guilty and the fact that he maintained that decision after having the judge’s alleged views communicated to him had not induced him to maintain that plea. He took a different view from the majority as to the effect of counsel’s communication to the accused of the alleged views of the trial judge. He commented as follows:

… I am not persuaded that the expression of a judge's views or their communication to an accused necessarily means that a decision to plead guilty induced by them is a decision not made in the exercise of a free choice. Whether it is or not in any particular case is simply a question of fact and I am unable to take the view that there is something so commanding in any expression of a judge's opinion that any decision made thereafter is to be presumed, irrefutably or not, to be made either not in the exercise of freedom of choice or as the result of improper pressure. The law has moved past the development of new legal fictions. Thus, as was the Victorian Court of Criminal Appeal in Pinhassovitch (unreported, 7 February 1994), I am unable to accept the view advanced by Lord Parker CJ in R v Turner (1970) 2 QB 321 at 326 which Ipp AJA has quoted.
There remains the question whether, irrespective of the actual or proved impact on the appellant of the reported views of the trial judge, a miscarriage of justice should be held to have occurred simply because prior to the actual entry of the plea either, the judge expressed views which were communicated to the appellant, or the representation of those views to the appellant, at least to the extent to which the terms of the written instructions were communicated, was misleading.
So far as the first of these matter is concerned while it is clearly preferable that judges keep to their allotted roles, I see no need to engraft on the established principles laid down by the High Court as to when a plea may be, or lead to, a miscarriage of justice yet another to the effect that a miscarriage of justice will have occurred whenever a plea of guilty is entered following the communication to an accused of what are, or are reportedly, the views of the presiding judge as to the wisdom of such a course or as to the likely result of a trial.
So far as the misleading representation of the judge's views is concerned, I see no reason to treat such a communication differently from any other made in circumstances such as to possibly bear on the entry of a plea. If by evidence or inference it is shown that the plea was not made in the exercise of free choice, or was the result of improper pressure, then a miscarriage has occurred. If the misrepresentation was of a nature or made at a time calculated to influence the decision, then inducement will be readily inferred. However, it is clear law that inducement must be shown. Thus in R v Cincotta ([U]nreported, Court of Criminal Appeal, 1 November 1995) Hunt CJ at CL, with whom Grove and Allen J agreed, said:
“The applicant for such permission (to withdraw a plea) bears the onus of showing the existence of that miscarriage. It will be shown to exist where, for example, the plea was induced by threats or other impropriety …”[42]

[42]Ibid 257-8.

If Mr Holden was in fact told by his counsel that the judge wanted him to plead guilty and would not take ‘”no” for an answer’ (even though no such comments were made by the judge) the majority opinion in KCH supports the view that a miscarriage of justice has necessarily occurred and the conviction should be set aside.

The Victorian view is different. In Pinhassovitch[43] an applicant sought leave to appeal from a conviction based on his guilty plea. He alleged that the plea was not freely made because his counsel exerted undue pressure on him and advised him that the judge wanted him to plead guilty. His counsel deposed that he had told the applicant that ‘the trial judge thought the case against him was very strong’. The Court held that the reference to the trial judge’s opinion did not nullify the applicant’s freedom of choice and that he was ‘well aware that the right to a trial was his to exercise whatever the judge’s opinion on the matter might be’.[44] They noted that counsel’s advice was not accompanied by any threat or consequence if the judge’s wishes were ignored.
[43](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Crockett and O’Bryan JJ, 7 February 1994).
[44]Ibid. As Ipp AJA noted in KCH the Court declined to follow R v Turner [1970] 2 QB 321.

According to Pinhassovitch the question whether a miscarriage of justice has occurred depends on a factual decision as to whether the accused freely chose to plead guilty. Contrary to the majority view in KCH, Pinhassovich held that the fact that an accused is told that the judge considers that there is a strong case against him or her, does not necessarily deprive the accused of his or her freedom of choice.

However even if Ipp JA’s view were accepted in Victoria, I do not consider that Mr Holden has established, on the balance of probabilities, that he believed on the basis of what counsel had told him, that the judge considered he should plead guilty or that the judge would give an unfavourable jury direction if he did not do so.

In KCH the appellant’s solicitor and barrister, counsel for the Crown and a friend of the appellant filed affidavits testifying as to the advice which was given to the appellant about the judge’s views and his legal representatives and his friend testified at the hearing. The evidence was that the appellant’s counsel saw the judge in chambers and that the judge’s alleged views were communicated to the appellant, though there was a dispute about whether this occurred before or after the appellant decided to plead guilty.[45]
[45]Indeed the appellant had signed written instructions confirming his decision to plead guilty which referred to the (alleged) view expressed by the judge that there was a risk he would be convicted of the more serious charge and the probability that he would be convicted of the lesser charge.

In this case, by contrast, Mr Holden’s affidavit and viva voce evidence provide the only direct evidence as to what occurred in meetings between himself and his legal representatives.[46]
[46]The admissibility of this evidence and other affidavit evidence, which contained various hearsay assertions, was not challenged by the Crown.

In her affidavit affirmed on 2 March 2009 (that is almost two years after the guilty plea) Leanne Holden deposed that Mr Holden’s counsel told her that the judge believed that Mr Holden should plead guilty, although she could not recall his precise words. That evidence falls well short of proving what Mr Hartnett actually said to Mr Holden or that this communication caused Mr Holden to plead guilty. Ms Holden also said that on the day that her brother had pleaded guilty she had been asked to sign a document that she believed was something to do with her brother’s land. She said she did not read the document, but later discovered that she had witnessed her brother’s signature.[47] Leanne Holden’s daughter, Ms Menich, deposed in an affidavit affirmed on the same day that ‘on the day the trial was stopped … Mr Dwyer asked Leanne to go with him into a small room near the court and she was told she could not go in because they had to sign some documents.’
[47]In the affidavit Mr Holden affirmed on 26 May 2009, Mr Holden deposed that his sister signed the document before he himself had signed it.

Leanne Holden, and Ms Menich did not testify on the hearing of the appeal. Nor did Mr Dwyer (Mr Holden’s solicitor) or Mr Hartnett (Mr Holden’s defence counsel) give any evidence as to the terms of the advice given to Mr Holden, before he pleaded guilty. Mr Dwyer wrote to the Court in the following terms.

1I reject the allegations contained in the material that Mr Holden’s Murder Trial was not handled in a competent and ethical manner by his legal representatives;
2I deny that I was ever instructed by Mr Holden and/or his agents to lodge an Appeal Against Conviction in relation to his manslaughter or any other matter;
3I have not been found guilty of any offence by the Legal Services Commissioner. I am presently corresponding with the Legal Services Commissioner regarding a complaint made against me by Graham Holden and/or his agents.

It is unfortunate that Mr Dwyer’s letter does not directly respond to Mr Holden’s claims. However on the basis of the evidence before the Court I do not consider that Mr Holden has shown that a miscarriage of justice occurred because he did not freely plead guilty. For the following reasons I do not consider that Mr Holden’s evidence as to the circumstances in which he pleaded guilty is credible.

First, Mr Holden said in his affidavits of 19 February 2008 and 16 June 2008 that he had told Mr Dwyer on 27 July 2007 (that is after the guilty plea) that he had not wanted to plead guilty. In his affidavit of 11 August 2008, he changed the date on which he told Mr Dwyer that he did not want to plead guilty and on which Mr Dwyer pressured him to sign over property, to 25 July 2007, the day on which the guilty plea was entered. Despite the support provided by his sister’s affidavit, it is difficult to avoid the conclusion that this change of date occurred in order to support Mr Holden’s claim that his legal practitioners knew he did not want to plead guilty but coerced him into doing so.

Secondly Mr Holden said that on 25 July 2007, while he was considering whether to plead guilty, he was asked by Mr Dwyer to sign a document charging his property. The equitable charge signed by Mr Holden and witnessed by his sister, Leanne Holden, is dated 16 July 2007, nine days before Mr Holden pleaded guilty to manslaughter.

Thirdly, Mr Holden claims his solicitor told him what to say if the judge asked him whether he was pleading guilty freely and that he answered the judge’s questions in accordance with these instructions. The transcript shows that no such question was put to him by the trial judge. In cross-examination he could not explain this discrepancy.

Fourthly, Mr Holden’s affidavits refer to counsel telling him he was leaving to speak to the judge. As I have said, all conversations between his counsel and the judge occurred in open court, in the presence of Mr Holden. Mr Holden also said that Ms Cotter told him what had occurred in court, although he was himself present.

Fifthly, Mr Holden said in his affidavit of 19 February 2008 that he had ‘sacked his solicitor’ on 2 August 2007 and that, when Ms Blair visited him in gaol on 8 August 2007, he sent her a message that his legal team was sacked. However, he also said that he had rung Mr Dwyer’s office within 14 days of being sentenced and left him instructions to lodge a notice of appeal against conviction. These assertions appear to be inconsistent.

Sixthly, although his affidavits were generally consistent with each other, the account of the circumstances in which he pleaded guilty is elaborated in the later affidavits. For example, the allegation that Mr Dwyer falsely told him he was not entitled to legal aid and that this induced him to plead guilty was made for the first time in his affidavit of 25 February 2009.

Seventhly, I consider there is insufficient evidence to allow any conclusion to be drawn about Mr Holden’s claim that Mr Dwyer’s false statement about the unavailability of legal aid played a part in his decision to plead guilty. A letter granting legal aid to Mr Holden from 8 March 2006, for his committal proceedings in relation to the murder charge, is exhibited to his affidavit affirmed on 25 February 2009. An uncompleted Victoria Legal Aid form which is also exhibited to that affidavit notes ‘matter transferred to private lawyers-client is funding it’.

Ms Cotter was deeply committed to showing that Mr Holden was unjustly convicted. She was not present during the discussions between Mr Holden and his legal representatives. Her evidence as to the circumstances in which he pleaded guilty is based solely on what Mr Holden told her and on her conversation with defence counsel on the day of the plea hearing. It is of little value in establishing that Mr Holden was coerced into pleading guilty.

Mr Holden had a history of depression and was discharged from Thomas Embling only shortly before his trial began. I accept that in such circumstances he may have been more susceptible to pressure to plead guilty than a person who was less mentally fragile. However, in my opinion Mr Holden did not satisfy the onus of establishing that a miscarriage of justice occurred because his plea of guilty was not freely made. The most likely reasons for Mr Holden’s assertion that his will was overborne were that after he pleaded guilty a prison officer told him he was ‘crazy’ to have done so and that he was concerned about the sentence which was likely to be imposed on him.

Failure to withdraw plea

Mr Holden also alleged that he wished to withdraw his plea shortly after making it, but was unaware that he might be able to do so until after he was sentenced on 12 October 2007. He alleges that there was a miscarriage of justice because he was not advised that he could apply to the trial judge to withdraw his guilty plea, before he was sentenced.

I have already referred to Mr Holden’s claim in his affidavit of 19 February 2008 that he told his solicitor, Mr Dwyer before his plea hearing on 27 July 2007 that he wanted to withdraw his plea of guilty and was told he could not. He said he gave a similar instruction to Mr Dwyer on 1 August 2007 but was told by his solicitor he had to wait until he was sentenced, but could appeal against the severity of the sentence. Mr Dwyer was said to have repeated that advice on 24 August 2007. He also relied on his letter to Mr Dwyer dated 29 July 2007, which is set out in at paragraph 46 above.

Both Mr Holden and Ms Cotter deposed that Ms Cotter had made efforts to obtain legal advice about whether Mr Holden could withdraw his plea. She said she only became aware after he was sentenced on 12 October 2007 that Mr Holden might have been able to withdraw his plea before he was sentenced.

Despite my reservations about Mr Holden’s credibility, I consider that on the balance of probabilities he did regret pleading guilty and that Mary Cotter took steps on his behalf to ascertain whether the plea could be withdrawn before he was sentenced. That view derives some support from the letter he wrote to his solicitor on 29 July 2007 and (indirectly) from an email from Mary Cotter to Deborah (apparently a lawyer) dated 3 October 2007.

In that email Mary Cotter said she was trying to help Mr Holden and was hoping that ‘there would be grounds for withdrawing/revoking/retracting a guilty plea if the conduct of his solicitor can be shown to be unethical/unprofessional/un-something at the time of Graham making the decision to plead guilty.’ Ms Cotter made a similar assertion in a letter to James Farrell, another lawyer, on 17 October 2007, though this occurred after he had been sentenced.

Some slight support for the claim that Mr Holden told his lawyers that he wanted to withdraw his plea is also found in an email of 22 August 2007 from Kellie Blair, one of his legal team, to Mary Cotter. Ms Blair said that ‘I knew that Bushy (Mr Holden) had regrets over his plea’.

For the reasons given above, Mr Holden was not a credible witness. In my opinion, the evidence falls short of showing that Mr Holden gave instructions to withdraw his plea. However, I am prepared to assume in his favour that he wished to withdraw his plea and that Ms Cotter made enquiries on his behalf from other lawyers as to whether this could be done.

A person who pleads guilty may apply to the court for leave to withdraw the guilty plea before he or she is sentenced.[48] It is implicit in Mr Holden’s submission that if he had sought to withdraw his guilty plea before he was sentenced, the judge would have granted that application and that thus, a miscarriage of justice occurred. Counsel for the Crown submitted that, even if such an application had been made, it is unlikely that her Honour would have permitted the plea to be withdrawn in circumstances where it was negotiated in the context of a directed acquittal on the charge of murder.
[48] Maxwell v R (1996) 184 CLR 501, 510-511 (Dawson and McHugh JJ).

In Middap,[49] the applicant sought leave to appeal from a decision of a trial judge refusing to allow him to change guilty plea to not guilty. It was submitted on his behalf that there was a presumption in favour of granting the application. The applicant relied on a passage in The Queen v Broadbent[50] in which O’Bryan J (giving judgment for the Victorian Court of Criminal Appeal) said that a guilty plea:

… may in the course of the trial be withdrawn. It would appear that the court has a discretion not to allow such a withdrawal but in most cases a prisoner who desires to withdraw his plea of guilty should be allowed to do so.[51]

[49](1989) 43 A Crim R 362.

[50][1964] VR 733.

[51]Ibid 735.

In Middap,[52] the Crown in answer relied on a passage in the judgment of the Court of Criminal Appeal in Dauer[53] in which it was said:

… it is not for us to rehear the material with which you are seeking to win a right to change your plea, and as no error was found on the part of the judge (and, indeed, the evidence would have to be extremely strong to persuade him to allow you to enter a changed plea) we can see no reason for interfering with what has occurred in that connection and your application for leave to appeal against conviction must therefore fail.

[52](1989) 43 A Crim R 362, 363.

[53](Unreported, Court of Criminal Appeal, 5 September 1986).

The Court (Crockett, O’Bryan and Grey JJ) said that neither of these passages should be construed as indicating that a presumption arose in favour of or against an applicant seeking leave to change his plea of guilty to one of not guilty:

The only test which is to be applied is whether a miscarriage of justice, in the view of the judge, would occur if the leave sought were denied the applicant. Each case must be examined on its own facts and merits, and there is no question but that the judge has a discretion, indeed perhaps a wide discretion, to exercise in relation to the matter ...[54]

[54](1989) 43 A Crim R 362, 364.

In Middap, it was held that no miscarriage of justice had occurred, because the trial judge had refused to allow the applicant to change his plea. The Court considered that the judge’s decision was based on the fact that the applicant’s real complaint was about the penalty that had been imposed and it was for that reason that the applicant had sought to change his plea. In those circumstances it was held that no miscarriage of justice had occurred.

In Boag[55] the New South Wales Court of Criminal Appeal (Hunt CJ, with whom McInerney and James JJ agreed) rejected the submission that there is a right to a grant of leave to withdraw a guilty plea whenever the applicant has a bona fide wish to be tried by a jury. The Court held that once an accused freely pleads guilty the fact that the Crown case might not have succeeded if the jury took a particular view of the evidence did not necessarily mean that there was a miscarriage of justice if the accused was held to the plea.[56]
[55](1994) 73 A Crim R 35.
[56]Ibid 37.

In my view Mr Holden’s appeal against conviction was partially motivated by the fact that the sentence he received was longer than he expected. He may also have believed that he had a chance of not being convicted of any offence. While this was a matter which the trial judge could have taken into account in deciding whether he should be permitted to withdraw his guilty plea, it is not decisive.

The question then is whether a miscarriage of justice has occurred because he was unaware that he could apply to the trial judge to change his plea. The onus is on Mr Holden to show that such a miscarriage has occurred.[57]
[57]R v Boag (1994) 73 A Crim R 35.

Counsel for the Crown submitted that even if such an application had been made it was unlikely that her Honour would have permitted a withdrawal of the plea in circumstances where it was negotiated in the context of a directed acquittal on the charge of murder.

In my opinion, the Crown’s submission that, if such an application had been made it was unlikely that her Honour would have accepted it, should be accepted.

The plea was negotiated in a context in which Mr Holden admitted to killing Torney, but said that the killing occurred in self-defence. For the reasons discussed above the Crown case against Mr Holden was a strong one. The effect of the directed acquittal on the murder count is that Mr Holden could not be tried for that offence, even if the trial judge had permitted him to withdraw his plea of guilty to manslaughter. I have found that Mr Holden freely pleaded guilty to manslaughter. In these circumstances I do not consider that a miscarriage of justice occurred because Mr Holden was deprived of the opportunity to withdraw his guilty plea.

I would therefore dismiss Mr Holden’s application for leave to appeal against conviction.

HANSEN AJA:

I agree with Neave JA.

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[2009] VSCA 254

29 October 2009