R v Hopkins

[2011] VSC 540

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 33 of 2011

THE QUEEN

V

DAVID WARWICK HOPKINS

---

JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF RULING:	7 September 2011
CASE MAY BE CITED AS:	R v Hopkins
MEDIUM NEUTRAL CITATION:	[2011] VSC 540

---

Ruling:  – plea of guilty – application to change plea refused.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Champion SC Ms H Fatouros	For the office of Public Prosecutions
For the Accused	Mr D Moen	M Gleeson & Associates

HER HONOUR:

1. In relation to this matter David Hopkins has made an application to change his plea.  He pleaded guilty initially at the committal mention hearing on 8 March 2011.  He again pleaded guilty before me on 29 March 2011. 

1. The circumstances of that plea of guilty were that a week prior he had a directions hearing in front of me.  He had communicated to the court via a document outlining his concerns.  A copy of that document had been given to his solicitor by Mr Hopkins.  The matter was then before me and adjourned as a result of this document with an indication that those matters ought to be addressed before any plea in relation to the matter was taken. 

1. Upon the adjournment of that matter I indicated to him that although his plea of guilty at the committal mention was not, in fact, binding, whatever plea he entered in front of me in a week's time would, in fact, be binding, giving him a clear indication that he had a choice about what plea he made, but that if he entered a plea of guilty he would be bound by that plea.  Accordingly, the week later he did, in fact, plead guilty. 

1. It is equally clear that prior to pleading guilty he received advice from his lawyers and he, in fact, signed a document, dated 4 March 2011, which reads: 

I, David Hopkins, acknowledge that I have been advised by my lawyers, Sam Norton, of the strength of the case against me and the availability of any defences.  I understand that I have the right to plead not guilty.  I also understand that if I plead guilty I will receive a discount for that plea, and that the earlier plea of guilty is entered the bigger that discount is likely to be.  Having received this advice I confirm that I wish to plead guilty to the charge of murder.  I understand that a plea in mitigation will be made on my behalf.

1. It would appear that Mr Hopkins is unhappy about his plea of guilty.  That is not a basis for a change of plea. 

1. As was noted by Mr Patrick Newton, a psychologist, him seeking to put the blame elsewhere is consistent with him not being able to cope with the enormity of what he has done and his guilt therein and that it is not an unexpected  situation. 

1. In relation to this application I have a discretion to allow an accused person to withdraw a plea of guilty, and that can occur at any time up to the moment of sentence. 

1. The test is really whether a miscarriage of justice would occur if such an application for leave was sought and not granted.  The normal reasons that would enliven exercise of such discretion would be a failure to understand the nature of the plea, being overborne, being misled, or matters of that nature. 

1. What is claimed by Mr Hopkins is that at no stage has anyone, until Mr Gullaci spoke to him, properly explained potential defences that he had.  His advice was exhibited. 

1. In relation to that advice Mr Gullaci said: 

I advised Mr Hopkins that, apart from any possible defence of mental impairment, the prosecution case was overwhelming and he was likely to be convicted if he ran a trial.  Any defence of mental impairment looks tenuous at the moment based on the information Mr Hopkins provided to me.  I relayed to Mr Hopkins that he had to make a decision in the near future as to which course he proposed to adopt, either (a) maintain his guilty plea or, (b) apply to change his plea based on a defence of mental impairment.  If he is to go" ‑ it says "done", DONE, I think it is meant to read "down" ‑ "down this route, further enquiries will need to be made with Dr Deakin and subpoenas issued in relation to the hospital file.

1. On the basis of that advice he does, in fact, not have a defence open to him, because he does not have a defence of mental impairment open.  Mental impairment relates to a disease of the mind.  He does not have a disease of the mind, and his counsel concedes as much. 

1. That is the only advice of which I was aware and that was exhibited in the affidavit. 

1. So, in my view, his desire to change his plea on the basis of mental impairment cannot be sustained. 

1. As was made clear by Smith J in the matter of Thomas John Sebalj, a decision handed down on 5 June 2003, citation [2003] VSC 181.

1. When examining the defence of mental impairment His Honour said that the common law still stands, and the common law requires that mental impairment is a concept about disease of the mind. 

1. His Honour stated at paragraph 10:

In considering the provisions it may be said, as counsel for the accused argued, that the range of supervision orders available indicates that Parliament envisaged the possibility of short‑term and transient impairment, but unless some limits are imposed upon the term 'a mental impairment' the statutory defence, and the statutory regime, would apply whenever the mind of a person charged with an offence had been adversely impaired to a material degree by alcohol or drugs.  This would be a dramatic and extremely wide‑ranging change to the law and vast numbers of accused people could seek to rely on and be made subject to the statutory regime.  It would be surprising if the Parliament intended to bring about such changes by the use of the term 'a mental impairment', a term which it did not define.

His Honour then continued:

The term 'mental impairment' should not be construed as changing the common law, but construed as referring to the concept of a disease of the mind used in the common law defence of insanity.

1. It is now raised that there may be another aspect to this, such as a dissociative state.  There is nothing in the material from Dr Deakin, or any other person, or in the affidavit, referring to a dissociative state.  What is claimed in the affidavit is that he has a defence of mental impairment.  That, he does not. 

1. In my view, in light of the numerous lawyers and change of lawyers that Mr Hopkins has had over the period of time, the amount of information that has been supplied to him by either the Court, the police or his lawyers, he was, at the time he made this plea, in a position of being fully informed of the brief of his potential defences, or lack thereof.  When he entered the plea he did so voluntarily and in an informed position. 

1. I do not accept, that none of these lawyers, that he had prior to Mr Gullaci, explained anything.  They may not have explained that he had a defence of mental impairment, probably because they knew he did not. 

1. Under those circumstances, I see no basis at all, for there being exceptional circumstances in this case. 

1. The plea entered was valid and proper, and I do not exercise my discretion to allow Mr Hopkins to change that plea.

---