R v Mc Cormack - [2009] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MC CORMACK
[2009] SADC 131
Reasons for Ruling of His Honour Judge Millsteed
25 November 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Application by defendant to withdraw plea of guilty to offence of taking part in the manufacture of methylamphetamine - defendant contends that he is not guilty of the charge and that he entered his plea due to threats from persons involved in the commission of the offence - defendant further contends that he will suffer financial loss due to proceedings commenced under the Criminal Assets Confiscation Act - application refused.
Controlled Substances Act 1984 s 32 (1)(b); Criminal Law Confiscation Act 2005 s 24, s 74; Correctional Services Act 1982 s 37A, referred to.
Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392; Meissner v The Queen (1994-1995) 184 CLR 132; Maxwell v The Queen (1996) 184 CLR 501; R v Clayton (1984) 35 SASR 232; R v Pugh (2005) 158 A Crim R 302; R v Brooks and Childs (2006) 95 SASR 369; R v Liberti (1991) 55 A Crim R 120; R v Brooks (2007) 96 SASR 478; R v Boag (1994) 73 A Crim R 35; Venning v Police (2001) 216 LSJS 338, considered.

R v MC CORMACK
[2009] SADC 131
Introduction

The defendant, Mark Mc Cormack, pleaded guilty to taking part in the manufacture of methylamphetamine, contrary to s 32 (1) (b) of the Controlled Substances Act 1984 but now applies to withdraw his plea on the following grounds:
·That the plea was not entered out of a consciousness of guilt but due to threats from persons who were involved in the commission of the offence.
·That he is not guilty of the charge.
·That he will suffer a financial loss due to proceedings commenced under the Criminal Assets Confiscation Act 2005 (SA) (“the CAC Act”).
The Director of Public Prosecutions (“the DPP”) has opposed the application.
Factual background
The defendant was the registered proprietor of a residential property at 1 Solandra Court, Modbury North. He purchased the property in 2005 with a substantial loan obtained from St George Bank and lived there with his partner, Sally Hill and his children. It is the case for the prosecution that a few months before the defendant’s arrest, Ms Hill and the children temporarily moved into premises at Oakden. The defendant continued residing at 1 Solandra Court and, with other persons, set up a ‘clandestine methylamphetamine laboratory’ inside the house.
On 22 June 2006 police conducted a covert surveillance on an associate of the defendant, George Hawea. Hawea was observed to catch the Sealink ferry from Kangaroo Island to Cape Jervis and then drive to the defendant’s premises at 1 Solandra Court, arriving there at about 5.30 pm. He parked his car in the street and then entered the house.
At about 6 pm police officers attended the premises. An extension of the front wall of the house contained a roller door and gate that provided access to a carport. Police officers went to the gate and yelled out “police” but there was no response from within the house. The police then forced open the gate and entered the courtyard under the authority of a General Search Warrant. The defendant was observed to run from the courtyard into the house, closing and locking the door behind him. The police forced open the door, entered the house and found the defendant and Hawea in the vicinity of the kitchen.
The house contained two furnished bedrooms (the main bedroom and the children’s bedroom) and a spare bedroom. The police located in the spare bedroom chemicals, laboratory glassware (including a conical flask that bore the defendant’s fingerprints), retort stands and other equipment associated with the manufacture of methylamphetamine. The police also found in the spare bedroom eight immature plants growing in small containers and large empty plastic pots, light shades, ballast boxes and irrigation equipment that could be used to produce cannabis hydroponically.
Numerous items of laboratory glassware, chemicals and equipment associated with the manufacture of methylamphetamine were located in the laundry, bathroom, kitchen and the children’s bedroom. Two large eskies, each of which contained equipment and chemicals, were found in the carport where the defendant’s utility was parked. The name ‘Hawea’ had been written on one of the eskies in black pen. The items found in one esky included two ‘Cigweld’ air purifying masks. DNA profiles obtained from each mask contained a mixture of DNA that matched the combined DNA profiles of the defendant and an unknown male.
A forensic scientist, Dr Pigou, examined the items seized by police and concluded that all of the chemicals and equipment needed to convert pseudoephedrine to methylamphetamine were present. Residues of methylamphetamine were found on a set of electronic scales and further residues of the drug were recovered from items of laboratory glassware and the filters in the ‘Cigweld’ air purifying masks. The items found at the scene indicated that the manufacture of methylamphetamine had taken place.
In addition the police located in the dining room and lounge room scientific books and documents including downloads from the internet that described methods of methylamphetamine manufacture. A laptop computer located on the dining table was logged on to a site from which some of the material appeared to have been downloaded. An ‘Ace Chemical Company’ brochure was found on the table next to the computer. The brochure, which bore the defendant’s right thumbprint, contained descriptions of the synthesis of amphetamines from benzyl cyanide. A bottle of benzyl cyanide was found in one of the eskies.
A Nokia mobile phone that belonged to the defendant was located on the kitchen bench. The phone contained contact entries for suppliers of scientific glassware and chemicals including ‘Ace Chemical Company’. A tax invoice from Ace Chemical Company dated 20 June 2006 relating to the cash purchase of chemicals was located on the lounge room floor.
The defendant was arrested at the premises and questioned by Detectives Morgan and Beaumont. During the videotaped interview the defendant was advised of his arrest rights and indicated a willingness to answer questions. He admitted that he lived at 1 Solandra Court and said that Hawea was “just visiting him”. The defendant falsely asserted that he was renting the premises. As I earlier indicated he was in fact the registered proprietor. The defendant said that his partner Sally Hill and his children also lived with him but were “currently at her place … just having a break”. The defendant said that he knew there was cannabis inside the house but suggested that he was unaware that methylamphetamine was being manufactured on the premises. He further suggested that he was not even aware that there were items of laboratory equipment and chemicals inside the house.
The defendant was conveyed to the Holden Hill Police Station and charged with taking part in the manufacture of methylamphetamine. He was given the opportunity to contact a solicitor and then declined to answer further questions. Hawea was also arrested and charged with taking part in the manufacture of methylamphetamine, but the proceedings against him were later discontinued.
Court proceedings
On 3 September 2007 the defendant was arraigned in this Court upon an information, filed by the DPP, charging him with one count of taking part in the manufacture of methylamphetamine. The defendant entered a plea of not guilty and was remanded for trial.
The defendant remained on bail until 31 January 2008 when he failed to attend a directions hearing. His bail was revoked and a bench warrant issued for his arrest. He was subsequently arrested and brought before the court on 11 March 2008 and granted fresh bail.
On 18 July 2008 the defendant pleaded guilty in the Holden Hill Magistrates Court to the offence of producing cannabis and was fined $250. This charge related to the eight immature cannabis plants that were found in the spare room with the methylamphetamine laboratory.
On 24 July 2008 the police returned to 1 Solandra Court and again found chemicals and equipment associated with the manufacture of methylamphetamine inside the house. The defendant was present when the police arrived and said that he was cleaning up after tenants who had vacated the premises. He was arrested and taken into custody for taking part in the manufacture of methylamphetamine. Earlier this year, the defendant was arraigned in this Court on that charge and pleaded not guilty. The date of his trial in respect of that charge is yet to be fixed.
On 14 October 2008 the defendant successfully applied to the Supreme Court for a bail review. He was released on a single bail agreement, that applied to both the 2006 and 2008 manufacturing charges, upon condition that he not use illicit drugs and that he submit to urine drug testing as directed.
On 21 and 27 October 2008 the defendant submitted to urine testing and, on both occasions, tested positive for the presence of methylamphetamine in consequence of which his bail agreement was revoked on 20 November 2008. The defendant has remained in custody since then.
On 2 February 2009 the DPP filed a new information in the District Court which contained the 2006 manufacturing charge and a further charge of possessing a prescribed firearm without a licence. The additional charge related to a sawn off shotgun that was found by police at 1 Solandra Court on 22 June 2007.
On the morning of 3 February 2009, the defendant appeared for trial on the new information represented by Mr Lang of counsel. Mr Lang obtained an adjournment until 2.15 pm that day so that his instructing solicitor, Mr Mancini, could obtain further instructions from the defendant. When the matter was called back on the defendant was arraigned and pleaded guilty to the 2006 manufacturing charge whereupon the prosecution entered a nolle prosequi in respect of the firearm charge.
I was then informed by Mr Lang that the factual basis of the defendant’s plea was documented in a letter (exhibit P 11) that he had received from Mr Edge. The letter, dated 3 November 2009, states:
I refer to your discussions about this matter earlier today. You advised that your client is prepared to plead guilty to count 1 if count 2 does not proceed.
The factual basis for the plea as I understand it is as follows:
·        Your client was not the main player in this operation.
·        Your client knowingly allowed his premises to be used for the production of methylamphetamine.
·        Your client was present when the process of producing methylamphetamine (or at least a stage in that process) was underway. This is evidenced by his DNA being on the respirators and his fingerprints appearing on glassware in the ‘lab room’.
·        Your client knew that part of the methylamphetamine produced would be sold.
·        Your client was not going to be involved in selling that methylamphetamine.
·        Your client would receive methylamphetamine as reward for his involvement in this process. He cannot say how much he would receive.
·        The current ‘cook’ was the first one to be undertaken at your client’s premises, although the accruing of equipment and chemicals for producing methylamphetamine had been occurring for up to two months before hand.
I advise that the Director is prepared to accept a plea to count 1 on the basis set out above. Once a plea is entered, a nolle prosequi will be entered in relation to count 2.
The matter was listed for sentencing submissions on 23 March 2009. However, a delay in the preparation of a psychological report relating to the defendant resulted in an adjournment of the proceedings.
On 16 April 2009 the matter came on for sentencing submissions. Mr Lang reiterated that the defendant’s plea had been entered on the basis set out in the letter from the DPP and elaborated on the defendant’s involvement in the offence. He said:
[The defendant] was approached by a person who wished to rent his premises. He entered into what might be called an informal lease arrangement for that purpose. His actual involvement in the production, if you like, was minimal, to the extent that he’s not really aware of the stage that production had reached and he wasn’t really conversant with the processes which were being applied. The plea encapsulates that he was present and aware that chemical processes were occurring in the house during his presence.
(My underlining)
The following exchange then took place:
HIS HONOUR:     He’s pleaded guilty on the basis that he was a knowing participant in the manufacture of amphetamine. He knew that amphetamine was –
MR LANG:        That’s right. He knew the specific substance was being produced but he was not sure of the stage the process had reached. He’s provided me with the name of the lessee but I’m not instructed specifically not to divulge that. He has provided with me some scant documentation as to the informal lease, if you like, and he states that he hasn’t seen the relevant party since.
HIS HONOUR:     Is there some reason why he doesn’t want to divulge the name of that person?
MR LANG         He’s not sure of the repercussions that might have for his family. That’s his main concern.
I sought further details of the defendant’s involvement.
HIS HONOUR:     When did he realise and how did he realise that the premises were being used for purposes of methylamphetamine production?
MR LANG:        No rent was paid as had been agreed. When he went to the premises to remonstrate about that, there was a confrontation with three gentlemen who told him to mind his own business. That’s when he realised that something else was afoot. He became embroiled to the extent of the offending thereafter.
HIS HONOUR:     How did that happen? How did he become involved?
MR LANG:        He wasn’t particularly keen on the situation but, unfortunately, he allowed it to occur. He was not the cook, if you like, but he was present when some sort of chemical process was occurring and he moved some equipment about, or some bottles about.
HIS HONOUR:     But why did he become involved?
MR LANG:        I haven’t got direct instructions on what took place.
HIS HONOUR:     I’d like to know how it came about that Mr McCormack leased these premises for what he believed were conventional purposes, and then he became involved, as a knowing participant, in the production of methylamphetamine?
MR LANG:        That’s the purpose of the agreed facts as to his involvement.
HIS HONOUR:     The agreed facts are not in sufficient detail for my purposes.
MR LANG:        Well, your Honour, that’s the basis upon which he pleaded and he accepts the commission of the intrinsic elements of the offence.
HIS HONOUR:     He’s not prepared to provide further information?
MR LANG:        No, he’s not.
(My underlining)
It is to be observed that the submissions made by Mr Lang confirmed that the defendant’s plea had been entered on the factual basis outlined in the letter (exhibit P 2) and involved an admission to all of the essential elements of the offence. Nevertheless, I expressed concern about the adequacy of the details I had been given in relation to the defendant’s role in the offence and granted defence counsel an opportunity to obtain further instructions. I adjourned the proceedings for that purpose.
On 13 May 2009 Mr Mancini appeared for the defendant and stated that the defendant wanted to withdraw his guilty plea. The plea withdrawal application was listed for hearing on 10 July 2009.
On 22 June 2009 the matter came on for a directions hearing. Mr Hegarty appeared for the defendant and announced that he had been instructed to take over the conduct of the matter from Mr Mancini.
On 10 July 2009 Mr Hegarty applied for the plea withdrawal application to be adjourned.
On 17 August 2009 the matter came back on and Mr Hegarty announced that the defendant would not pursue the application. Mr Hegarty then proceeded to make submissions purportedly in mitigation of sentence. He submitted that the defendant attended 1 Solandra Court on 22 June 2006 to collect rent from a person to whom the defendant was leasing the premises. The defendant entered the house when he realised that the tenant was not present and discovered the chemicals and laboratory equipment. He was unaware of the existence of the drug manufacturing operation until then. At that point he decided to dispose of the laboratory and was in the process of dismantling it when the police arrived.
The prosecutor stated that the DPP did not accept the new factual basis advanced by the defendant while I expressed the view that it failed to acknowledge that he knowingly took a step in the manufacture of methylamphetamine. In other words, it was inconsistent with his guilty plea: see Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392 for an analysis of the elements of the offence.
On 18 September 2009 Mr Hegarty applied for leave for the defendant to withdraw his plea, essentially on the grounds summarised earlier (see [1]). In support of the application Mr Hegarty tendered an affidavit of the defendant, sworn on 19 June 2009 (exhibit D 1), and called the defendant to give oral evidence. The DPP opposed the application and relied upon the statements of the prosecution witnesses and the affidavit of the prosecutor, Christopher Brian Edge, sworn on 29 June 2009 (exhibit P 10).
At the conclusion of the defendant’s evidence the matter was adjourned for closing submissions which were made on 30 September 2009 and 21-22 October 2009. On 21 October 2009 the DPP filed further affidavits from Mr Edge sworn on 19 October 2009 (exhibit P 12) and Corinne Louise Harrison, a solicitor employed by the DPP, sworn on 14 October 2009 (exhibit P 13). The contents of the affidavits of Mr Edge and Ms Harrison, to be discussed later, were not challenged by the defendant. I reserved my ruling.
Confiscation proceedings
The defendant contends that in determining whether to allow the plea withdrawal application I should also take into account that proceedings have been instituted under the CAC Act that will result in him forfeiting to the Crown the amount of $75,152 if his conviction is allowed to stand.
The confiscation proceedings, summarised in the affidavit of Ms Harrison, commenced in 2006. On 20 October 2006, the DPP obtained a restraining order in the Adelaide Magistrates Court against the defendant’s property at 1 Solandra Court pursuant to s 24 of the CAC Act. The order was made subject to the rights of St George Bank (“the Bank”) as the registered mortgagee. A mortgagee sale was conducted on behalf of the Bank and settlement occurred on 4 March 2009. Following the mortgagee sale the surplus funds were held in trust by the Bank’s solicitors.
When the confiscation proceedings commenced the defendant was represented by solicitors Caldicott & Co. In 2008 Mangan Ey & Associates took over the conduct of the matter on behalf of the defendant. On 3 March 2009 the DPP was advised that Mangan Ey & Associates were no longer acting and that Mr Mancini was acting for the defendant in the confiscation proceedings. By letter dated 23 March 2009, Mr Mancini requested from the DPP a copy of the restraining order and supporting affidavit material and other relevant documents. The documents were forwarded to Mr Mancini under cover of letter dated 1 April 2009.
On 3 April 2009 the DPP applied for and obtained a variation of the restraining order in consequence of which the monies held in trust by the Bank’s solicitors were transferred to the Magistrates Court Litigants’ Fund.

On 4 May 2009, nine days before I was informed by Mr Mancini that the defendant wanted to withdraw his guilty plea, the DPP sent a letter to Mr Mancini confirming that surplus funds from the mortgagee sale amounting to $75,152 had been deposited in the Magistrates Court Litigants’ Fund. This amount will be automatically forfeited to the Crown, pursuant to s 74 of the CAC Act, if the defendant’s plea withdrawal application is rejected.
The defendant’s denial of guilt
On the hearing of the plea withdrawal application, the defendant testified that after he purchased 1 Solandra Court in 2005 he resided at that address with his partner Sally Hill and his children and subsequently commenced renovations of the house. During 2005 Ms Hill left the defendant and moved into a house at Oakden. In early 2006 they reconciled. Because they were experiencing financial difficulties they decided to live together at Oakden and lease the house at 1 Solandra Court.
At the time the defendant was a member of a motorcycle club (“the Club”). He had joined the Club in 2005 and remained a member until a short time after his arrest. In early 2006 the defendant was informed by a friend that a person, who I will refer to as X, was interested in renting 1 Solandra Court. The defendant testified that X was a friend of members of the Club but insisted that he did not become aware of that association until after he was arrested on 22 June 2009.
On 1 May 2006 the defendant and X executed a written lease agreement (exhibit D 7) wherein X agreed to pay rent in the amount of $350 per week. According to the defendant the agreement had been drafted by his partner, Sally Hill, and was signed by the defendant and X in her presence. The DPP contends that the written agreement is a fabrication.
The defendant testified that for the first few weeks of the tenancy X paid his rent on time but then defaulted. He attempted to contact X on his mobile phone and by leaving a note at the house but was unsuccessful. On 22 June 2009 the defendant attended 1 Solandra Court to speak to X but discovered that he was not at home. He then entered the house with a spare key and found the drug laboratory and cannabis plants. He said that this was the first time he had been inside the house since X had moved in and that he had no idea that methylamphetamine and cannabis were being produced on the premises.
The defendant said that a short while after he entered the house, his friend George Hawea arrived. He had not seen Hawea for several months and the visit was unexpected. He showed Hawea the laboratory and the cannabis plants and told him that he was going to get rid of them and find a new tenant. While he was having a drink with Hawea the police arrived. The defendant admitted that he ran away and tried to lock the police out of the house but said he was “a bit rattled”. I understood him to mean that he was concerned that he would be wrongly implicated in the drug offence. The defendant did not dispute that his fingerprints and DNA were found on incriminating items as earlier discussed, but suggested that he may have touched those items in the course of inspecting them or dismantling the laboratory.
In his affidavit and oral testimony the defendant said that about two days after he was arrested X rang him and said that the items seized by police belonged to the Club. On the following day the defendant received telephone calls from X and members of the Club who demanded that he pay the Club compensation in the amount of $50,000 if he failed to replace the seized items. He was also warned that he and the members of his family would be in “serious danger of assault or worse” if they disclosed the Club’s involvement in the drug offence. The defendant deposed that he and members of his family were constantly harassed thereafter. Members of the Club continued to demand the payment of $50,000 and the defendant’s silence in respect of their involvement.
There is no dispute that on or about 12 June 2007 the defendant filed a complaint at the Holden Hill police station wherein he stated that he had been assaulted earlier in the day by two men at 1 Solandra Court. The alleged offenders were subsequently arrested but the charges brought against them were discontinued when the defendant withdrew his allegations. In his affidavit, the defendant deposed that the offenders were ‘associates’ of the Club and explained that he withdrew his complaint because he had been threatened by Club members.
As earlier mentioned, the defendant failed to attend a directions hearing on 18 January 2008 and a bench warrant was issued for his arrest. In his affidavit, the defendant said that he failed to attend court on that occasion because he saw members of the Club standing at the entrance to the Sir Samuel Way Building as he approached it. He was intimidated by their presence and left. He also asserted that members of the Club later stole his Holden Commodore sedan and Harley Davidson motorcycle and continued to warn him “to keep his mouth shut”.
The defendant’s reasons for pleading not guilty
In his affidavit, the defendant gave the following reasons for entering a guilty plea to the 2007 charge of taking part in the manufacture of methylamphetamine:
9.I made the guilty plea under duress. The plea was agreed between me and the Police and DPP in February 2009.
10. The DPP and my lawyer, Mr Mancini, offered me a deal that if I was to “Plead Guilty to Take Part” and the part I played was accepting that I knowingly let somebody use my home for the purpose of manufacturing drugs; I would be at the lower end of the scale and the matter would be dealt with quickly.
11.I have been in gaol since October 2008. Since then continued threats have been made to my family. This has put me in an untenable position.
12.At the time I agreed to plead guilty my main desire was for the matter to go away by the easiest means possible. This was my instruction to Mr Mancini.
13.I was led to believe that if I accepted this “Bargain Deal” there would be no further action regarding a firearm also found at the house. This charge would not be mentioned.
…
70.Upon approaching this charge and trying to be very astute about any involvement from (sic) [the Club] I considered that it was best for me and my family to accept any blame, be as quiet as possible, complete any gaol sentence I may receive and move my family to a safer environment. Hence, my acceptance of a “Plea Bargain Deal”.
71.I do not believe that I can remain silent. If I do [the Club] will still come after me. At least if I give my story to the police the truth will come out.
…
73.The reality is that I had no involvement in the manufacture of drugs …
74.I now realise that I have made a series of stupid mistakes. I must decline acceptance of the “Bargain Deal” as the facts of the Deal hide the truth.
75.I have been in gaol since October 2008 awaiting the progression of this case. It is fact that I have accepted a “Plea Guilty Bargain Deal” with the DPP in a wish that this case could soon be finalised and I could return to my family.
The defendant’s examination-in-chief, on this topic, was as follows:
QWhy did you plead guilty?
AGeorge came into me, we were sitting down in one of the rooms out the back there and I said ‘What’s the fastest way home George? Basically I just want to get home to my family, start working. My family has gone through enough, suffered enough’. He said ‘just plead guilty, just plead guilty, it will be over before you know it’.
…
He said ‘Just plead guilty, just plead guilty, it will be all over before you know it’. I said ‘All right that’s what I will do’. He said ‘You will be eligible for home D, nothing will come out, that’s what will be done’. I said ‘That’s what I’ll do’.
QBut it was your decision to plead guilty?
AYes, to get it over and done with and not have to disclose the ins and outs of anything else.
…
QYou have had discussions with your previous solicitors regarding your plea?
APrior all of you coming aboard
QYes?
AYes.
QAs a result of those discussions you entered a plea of guilty to the charge?
AI did at one stage, yes.
QDid you make that plea of guilty after receiving legal advice?
AYes, like I said before George came into the room, they my exact words to him ‘Look George what’s the fastest way out of this? I want to go home. What’s the best thing that I do?’. His exact words were ‘Just plead guilty, just get it over and done with, you’ll be eligible for home D. It will all be behind you’. I said ‘All right, that’s what I’ll do’.
QWere you aware of the terms under which you would be pleading?
AAt the time I pleaded guilty under the terms they were going to drop certain charges, if I accepted knowingly letting someone use my house for the reason of, and I said – and he goes ‘That will put you at the lower end of the scale which means you didn’t play a major role, you didn’t have much to do with it and you will be released.’
It should be observed that in cross-examination the defendant suggested that the factual basis for the plea had been put by the DPP to his legal representatives.
QYou gave evidence about it just a moment ago but do you recall when the details, the factual basis, the facts that were going to be agreed for the plea, came up?
AThe facts you gave to George saying I pleaded guilty, knowingly let someone use my house.
QDo you remember that discussion?
AWhat George said to me
QYes?
AYes, I do.
QDid you discuss with Mr Mancini anything about the facts, about what would be agreed as to what your involvement was?
ASorry?
QI’ll be more specific. Did you suggest to Mr Mancini that your reward for being involved was methylamphetamine and not money?
AYou agreed to that. I just agreed –
HIS HONOUR
QThe question is did you suggest that?
ANo, I didn’t suggest that, no. This is what he come out and put to me. You guys –
QWho put it to you?
AGeorge came out the back here and he said to me, he said ‘They’ve offered you a deal, knowingly let someone use your house for the purpose of, you had nothing to do with the cook, nothing to do with the sale and you never profited from it but you knowingly let someone use the house for the purpose.’ This is the deal that they offered to me and I said to George ‘Look, at the end of the day, George, I just want to go home. What’s the fastest way home?’ His exact words were ‘Just plead guilty, you’ll be at the lower end of the scale, you’ll be eligible for home D before you know it and this will all be behind you.’…
XXN
QDid Mr Mancini ask you about your involvement and what you would be prepared to plead to and then did you make suggestions back to him at all?
AYou guys concocted up this deal, he come out and said ‘Would you be prepared to put your hand up for this?’ and my exact words were ‘George, at the end of the day I just want to go home to my family, they’ve suffered enough, I want to put it behind me’ He said ‘Well, I suggest you plead guilty to this deal and it will all be dealt with quietly, quickly and you will be on your way.’
HIS HONOUR
QWhat you’re being asked is whether you suggested to Mr Mancini any facts upon which you would be prepared to plead guilty?
AI don’t really understand what you mean.
QWhether you suggested that you would plead guilty on a certain basis. Did you suggest anything to Mr Mancini or did he simply put to you the factual basis of the proposed plea?
AI may have said ‘Are they offering any bargains?’, and that’s when he came back and said ‘They’re offering this, they’re going to say you had nothing to do with the cook, nothing to do with the sale, you never profited from it, you knowingly let someone use your house for the purpose of’. That’s what I agreed to I said ‘All right, if that’s going to get me home and it’s going to put me at the lower end of the scale, to keep things quiet and hush and get it over and done with and dealt with quickly, I’ll do it.’
The suggestion that the defendant agreed to plead guilty on a factual basis that had been formulated by the DPP and put to his counsel is inconsistent with Mr Edge’s affidavits. Mr Edge deposed that after Mr Lang had obtained an adjournment on the morning of 3 February, for the purpose of obtaining instructions from the defendant, that he and Mr Lang had discussions about resolving the matter. In his affidavit (exhibit P 10) Mr Edge said:
Those discussions commenced at 11.45 am when Mr Lang telephoned me and suggested that Mr McCormack was likely to plead to the drug charge if the firearm charge on the information was withdrawn.
I obtained instructions on the proposal put by defence and I asked Mr Lang to provide a factual basis to me in relation to the drug charge.
In a subsequent telephone conversation Mr Lang informed me that the basis included other people being involved, and that Mr McCormack was allowing his premises to be used for the manufacture of methylamphetamine. I was also informed by Mr Lang during this conversation that Mr McCormack would admit some involvement in the production process. I ask Mr Lang to obtain firmer instructions on Mr McCormack’s involvement in the process and his reward for his involvement. I informed Mr Lang that we would find it difficult to accept that Mr McCormack was not receiving any reward at all for his involvement in the production of drugs.
In a later telephone conversation that morning Mr Lang advised me of the factual basis on which they were prepared to resolve the matter. That basis is what is contained in exhibit CBE1 as annexed to my affidavit filed 29 June 2009.
The clear import of Mr Edge’s affidavit, which was accepted as factually accurate by Mr Hegarty on behalf of the defendant, is that Mr Lang initially put to him the factual basis of the plea and provided further details after obtaining instructions from the defendant. I accept the undisputed affidavits of Mr Edge. I find that the letter, exhibit P 2, confirmed the details of the factual basis of the plea put to the DPP by defence counsel and upon which the defendant had agreed to plead guilty.
Summary of defendant’s case
The defendant contends that he is innocent of the charge. He claims that he pleaded guilty because of threats made against him and members of his family by X and Club members. The defendant does not assert that those persons directed him to plead guilty, rather they warned him not to disclose their identity and involvement to the police. His “main desire was for the matter to go way by the easiest means possible”. To avoid having to implicate X and the Club he decided to accept blame for their conduct and plead guilty on a factual basis that would place him at the lower end of the scale of seriousness and, thereby, receive a sentence shorter than he otherwise would have received.
Mr Hegarty submitted that in the circumstances a failure to set aside the guilty plea would give rise to a miscarriage of justice. The defendant’s plea was not attributable to a consciousness of guilt but was the result of threats he had received. Mr Hegarty further submitted that the financial loss the defendant would suffer due to the proceedings under the CAC Act, would compound the injustice of the matter.
It should be observed that the defendant did not expressly assert, nor did Mr Hegarty argue, that the guilty plea was the outcome of any erroneous or imprudent advice from his former solicitor or counsel. I am satisfied that no inappropriate advice was given except in one possible respect. On the defendant’s account, he was told that if he pleaded guilty on the agreed factual basis that such a plea would place him towards the lower end of the scale of seriousness. There could be no complaint about such advice. However, in the course of his oral testimony (though not in his affidavit) the defendant suggested that he had also been told by Mr Mancini that if he pleaded guilty he would be “eligible for home D [detention]”.
For the reasons which follow I believe that such advice would have been inappropriate.
Section 37A of the Correctional Services Act 1982 confers on the Chief Executive Officer of the Department of Correctional Services (“the CEO”) a broad discretion whether to release a prisoner on home detention. The discretion is subject to certain limitations contained in s 37A (2). For example, a prisoner in respect of whom a non-parole period has been fixed cannot be released on home detention unless he has served at least one–half of the non-parole period (s 37A (2)(b)(i)). Furthermore the release of such a prisoner on home detention cannot occur earlier than one year before the end of the non-parole period (s 37A (2) (c)(i)).
So, the power to grant home detention may be constrained by the nature of the sentence imposed by the sentencing judge. Even if the limitations contained in sub-s (2) do not apply, home detention may be refused in the exercise of the CEO’s discretion. It is wrong for a sentencing court, in fixing sentence, to assume that the discretion will be exercised in any particular way: see Venning v Police (2001) 216 LSJS 338 (Perry J). It is also wrong for a defendant’s legal representatives to make such an assumption. It should be observed that I have not had the benefit of hearing from Mr Mancini or Mr Lang. They were not called to give evidence on this application. Accordingly, I do not know whether they dispute the defendant’s evidence on this topic.
Applicable principles
The principles governing an application to withdraw a guilty plea are well established. For the purposes of the present case they may be summarised as follows:
1.A plea of guilty involves an admission by the accused of all of the essential elements of the offence: Meissner v The Queen (1994-1995) 184 CLR 132 at 157 Dawson J; Maxwell v The Queen (1996) 184 CLR 501 at 508-509 Dawson and Mc Hugh JJ.
2.As a general rule an informed and deliberate plea should be treated as final: R v Clayton (1984) 35 SASR 232 at 234 Wells J. The onus rests on the accused to persuade the trial judge that a miscarriage of justice would result if he were bound by his plea: R v Clayton (above) at 234 Wells J; R v Pugh (2005) 158 A Crim R 302 at 196 Gray J; R v Brooks and Childs (2006) 95 SASR 369 at 389 Bleby J.
3.The courts adopt a cautious approach to allowing a change of plea. This approach recognises the public interest in the finality of proceedings and the fact that a plea based on legal advice is ordinarily regarded as an unequivocal and informed admission of the elements of the offence charged: R v Pugh (2005) 158 A Crim R 302 at 196 Gray J; see also R v Liberti (1995) 55 A Crim R 120 at 122 Kirby P.
4.A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence: Meissner at 141 Brennan, Toohey and Mc Hugh JJ.
5.A person may plead guilty, and be held to that plea, although the plea is made upon grounds that extend beyond that person’s belief in his guilt: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty because the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence: Meissner at 157 Dawson J; see also R v Pugh 158 A Crim R 302 at 311 Doyle CJ.
6.If the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But the judge cannot compel the accused to do so and if he refuses, the plea must be considered final: Maxwell v The Queen (above) at 510-511, Dawson and Mc Hugh JJ.
7.In determining whether a miscarriage of justice may flow from refusing to allow an accused person to withdraw his plea, the presence or absence of a genuine consciousness of guilt on the part of the accused is a relevant though not a decisive consideration: R v Pugh (above) at 311 Doyle CJ, 348 [201] Gray J; R v Brooks (2007) 96 SASR 478 at [80]-[82].
8.A miscarriage of justice may arise in many different situations. It may occur where the accused did not appreciate the nature of the plea which he had entered or if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety: R v Boag (1994) 73 A Crim R 35 at 36 Hunt CJ.
Consideration of issues

The defendant’s guilty plea involved an admission by him to all of the essential elements of the offence. It is not in dispute that he instructed his former counsel to put submissions in mitigation based on the facts summarised in the letter from the DPP dated 3 February 2009. In addition to the fact of the plea those submissions involved an acknowledgment by the defendant of all of the requisite elements of the offence and demonstrate a consciousness of guilt: see R v Pugh (above) at [25] Doyle CJ. In the circumstances, there is no reason for not acting on the plea absent circumstances that indicate that it was induced by fraud, threats or impropriety.
The alleged threats
I am prepared to accept that a person, X, and members of the Club were involved in manufacturing methylamphetamine at 1 Solandra Court. I am also prepared to accept that the defendant was harassed and threatened by those persons and warned not to disclose their involvement in the offence. However, I do not accept that the defendant’s guilty plea should be set aside for those reasons.
The defendant was not required to falsely admit his guilt to conceal their involvement. He could have maintained his innocence and denied any knowledge of the operation or of the identities of those involved. If for those purposes it was necessary to assert that the premises had been leased to X the defendant could have said that he was unaware of his tenant’s whereabouts. Indeed, this is essentially what the defendant now contends.
Furthermore, the facts that I am prepared to accept are not inconsistent with the defendant’s guilt. On the contrary, it seems strange that the Club would have held the defendant responsible for the seizure of chemicals and equipment if he was not involved in the manufacturing offence. To my mind, the threats make more sense when viewed in the context of the defendant having been jointly involved with Club members in the venture.
I appreciate, as Doyle CJ observed in Pugh (at [47]-[48]), that a judge confronted with a plea withdrawal application is not in a position to find, one way or the other, whether an applicant is guilty or not guilty of an offence because such a finding involves undertaking the task that would have been undertaken by the jury at trial. However, as his Honour observed, a judge may find that the circumstances of the plea when viewed objectively do not raise a doubt about the defendant’s consciousness of guilt or about the fact of guilt. That is the position that I have reached in this case.
In my view, the threats the defendant claims to have received are entirely consistent with his guilt. On the other hand, they are difficult to reconcile with innocence. Furthermore, the defendant’s denial of guilt lacks cogency in other respects. In particular:
·It would be an extraordinary coincidence for the defendant to have leased 1 Solandra Court to a stranger who happened to be an associate of a motorcycle club of which the defendant was a member and for fellow club members to have participated in the manufacture of drugs on the defendant’s property without any consultation or discussions having taken place between them and the defendant.
·The defendant claims that he leased 1 Solandra Court to X and that he lived with Sally Hill at Oakden during the tenancy. This assertion is entirely inconsistent with the admissions the defendant made to police. At one point in his evidence the defendant suggested that he may have mentioned to the interviewing police officers that the house was occupied by a tenant. But that assertion cannot be reconciled with the tape recording of the interview. The prosecution also tendered records of mobile phone SMS messages sent between the defendant and Sally Hill (exhibit P 4 and exhibit P 5). The messages were consistent with them living apart. The defendant’s attempts to explain the messages in cross-examination were unimpressive.
·The defendant suggested that the renovating materials and equipment found at 1 Solandra Court (for example plasterboard, drop sheets, power cords, hoses, buckets, tools and open tool boxes) had been left there by him when X commenced his tenancy. Apparently, no effort had been made by the defendant or X to pack away those items when X moved in. In my view, the more likely explanation for the presence of the renovating materials and equipment, and the locations in which those items were found, is that the defendant was actively involved in renovating the house at the time of the police raid.
·The defendant claimed that Hawea had merely called in to see him and that the visit had not been pre-arranged. It is difficult to accept that Hawea would have travelled all the way from Kangaroo Island without having informed the defendant of his intention to visit him especially if the defendant was no longer residing at 1 Solandra Court. The presence of the name ‘Hawea’ on one of the eskies containing incriminating items suggests that the purpose of Hawea’s trip may have been linked to the drug operation.
·The defendant admitted that the Nokia mobile phone found on the kitchen bench belonged to him but claimed that the names of chemical and scientific equipment supply companies entered in the phone were contacts he used to acquire acids and solvents in his building work.
·The defendant denied that various books and documents (including internet downloads describing methylamphetamine production) found inside his home belonged to him. However, he agreed that he owned the laptop computer which, at the time of the police arrival, was logged on to a site from which the internet downloads had been obtained. The defendant suggested that he had left his personal computer inside the house when X moved in. He had no sound reason for having done so.
·The defendant did not dispute that his fingerprints were found on the ‘ACE Chemical Company brochure’ (located on the kitchen bench) and the conical flask (located in the spare room with other laboratory equipment) and that his DNA was found on the two ‘Cigweld air masks’. The defendant said that he may have touched those items in the course of inspecting them and dismantling the laboratory. However, the defendant’s claim is difficult to reconcile with the state of the laboratory and the location of other incriminating items when police attended. There was no evidence of the laboratory having been pulled apart. It gave the appearance of an extant operation. It should be observed that the ‘Cigweld’ air masks were found in an esky which had another esky and a box stacked on top of it. It would have been strange for the defendant to have packed those items in the esky and to have then placed the other items on top.
·The defendant denied producing the cannabis plants found in the spare bedroom with the laboratory though, as earlier observed, on 18 July 2008 he pleaded guilty to producing those plants. He has never applied to have that plea set aside.
·On 24 July 2008 the defendant was arrested a second time for taking part in the manufacture of methylamphetamine at 1 Solandra Court. On the plea withdrawal application defence counsel did not examine and prosecuting counsel did not cross-examine the defendant about the circumstances of that alleged offence. Nevertheless, it strikes me as highly implausible that different tenants would, within the space of two years, manufacture or attempt to manufacture methylamphetamine on the defendant’s premises without his knowledge and involvement.
It can be seen from this brief review of the evidence that the case against the defendant was very strong. I am satisfied that the defendant entered his plea in the exercise of a free choice. He was given the benefit of legal advice and had ample time to consider his position. I am satisfied that he appreciated the strength of the prosecution case and believed that a timely guilty plea, entered on the factual basis advanced by him, would probably result in the imposition of a lesser sentence. He also knew that he would benefit from a discontinuation of the firearm’s charge. Furthermore, the circumstances of the plea and the nature of the evidence presented against the defendant do not cause me to doubt that his plea was entered out of a consciousness of guilt.
I earlier mentioned that if one accepted the defendant’s description of his discussions with his former solicitor that he received inappropriate advice on the issue of home detention. However, even if the defendant had received such advice that fact would not cause me to set aside his guilty plea.
As Doyle CJ said in Pugh ([52]):
From time to time mistakes will be made in advising an accused person. Sometimes, on later reflection, it might appear that better advice could have been given. None of these things, of themselves, are indicative of a miscarriage of justice should an accused person be convicted or plead guilty on the basis of advice: see TKWJ v The Queen (2002) 212 CLR 124; (2002) 133 A Crim R 574 at [16] Gleeson CJ, at [30]-[33] Gaudron J, at [91]-[93] McHugh J, at [110]-[111] Hayne J. They are aspects of our criminal procedures which are inherent in a process in which the accused person is advised by counsel. That is not to deny that on occasions erroneous advice can result in a conviction that amounts to a miscarriage of justice. But to conclude that there is a miscarriage of justice requires more than that mistaken advice has been given which plays a part in the securing of a conviction or in the decision to plead guilty.
I do not accept that an indication of an early release on home detention standing alone would have induced the defendant to enter his plea. This is not a matter that the defendant mentioned in his affidavit. It arose for the first time in his oral evidence. To my mind the critical factor from the defendant’s perspective was that he would be sentenced on a favourable factual basis that would likely result in the imposition of a sentence less than he otherwise would have received.
In any event, the defendant made a decision to plead guilty after weighing up the advantages and disadvantages of such a plea. He would have appreciated the strength of the prosecution case. He chose to admit his guilt, both by his plea and the submissions made through his counsel. Except for advice he may have received on the topic of home detention, there is no reason to apprehend that the legal advice he received was not sound. Furthermore, the defendant has failed to satisfy me that his plea was not attributable to a consciousness of guilt.
Finally, I reject Mr Hegarty’s contention that the proceedings under the CAC Act are relevant to the present application. Any financial loss the defendant suffers under the legislation would be the lawful consequence of a properly entered plea and conviction. Such a consequence is irrelevant to the threshold question of whether the plea should be set aside. For his part, Mr Edge argued that the accused’s application may have been triggered by a desire to avoid financial hardship and for no other reason. He emphasised, as earlier observed, that the DPP was informed of the defendant’s intention to apply to withdraw his plea only nine days after he was advised that the surplus funds from the mortgagee sale had been transferred into the Magistrates Court Litigants’ Fund. There may be some force in this submission but, in my view, there is no need to stay to consider it because I am satisfied, for the reasons expressed above, that the defendant has failed to establish that a miscarriage of justice would result if his guilty plea were allowed to stand.
Conclusion
The defendant’s application to withdraw his guilty plea is rejected.