R v McNicol

Case [2022] QSC 67

SUPREME COURT OF QUEENSLAND

CITATION:

R v McNicol [2022] QSC 67

PARTIES:

R

(applicant)

v
PAUL CLARK McNICOL

(respondent)

FILE NO/S:

Indictment No 1860 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2022

JUDGE:

Davis J

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - where Mr McNicol was charged with a drug offence - where Mr McNicol pleaded guilty - where Mr McNicol applied to withdraw the plea - where Mr McNicol alleged he was pressured by his lawyers to plead guilty - whether the plea of guilty was voluntary

PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR AND CLIENT - DISCLOSURE OF INFORMATION - where solicitors acted for Mr McNicol in defence of criminal proceedings - where solicitors and counsel advised Mr McNicol to plead guilty - where Mr McNicol entered a plea of guilty to the charge - where Mr McNicol then applied to withdraw his plea of guilty - where Mr McNicol said he was pressured by his lawyers to enter a plea of guilty - where Mr McNicol said the plea of guilty was not voluntary - where the Crown opposed the application to set aside the plea - where the Crown sought evidence from Mr McNicol’s former solicitors - where Mr McNicol’s former solicitors made no inquiries of Mr McNicol as to whether privilege was waived - where the solicitors provided an affidavit - whether that conduct was appropriate

JD Heydon, Cross on Evidence, Australian Edition, LexisNexis

Criminal Code Act 1995 (Cth), s 11.2, s 307.2

Carbone v National Crime Authority (1994) 52 FCR 516, cited
Edwards v The Queen (1992) 173 CLR 653, cited
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, cited
Goldberg v Ng (1995) 185 CLR 83, cited
GR Capital Group Pty Ltd v Xinfeng Australia International Investments Pty Ltd [2020] NSWCA 266, cited
Jones v Dunkel (1959) 101 CLR 298, cited
Lee v The Queen (2014) 253 CLR 455, cited
Libertiv R (1991) 55 A Crim R 120, followed
Mann v Carnell (1999) 201 CLR 1, cited
Maxwell v The Queen (1996) 184 CLR 501, cited
Meissner v The Queen (1995) 184 CLR 132, followed
Minter v Priest [1930] AC 558, cited
Osland v Secretary, Department of Justice (2008) 234 CLR 275, cited
R v GV [2006] QCA 394, cited
R v Hodgkinson [1954] VLR 140, cited
R v Mundraby [2004] QCA 493, cited
R v Ogborne [2006] QCA 161, followed
R v Paddon [1999] 2 Qd R 387, cited
R v Presser [1958] VR 45, cited
R v Shillingsworth [1985] 1 Qd R 537, cited
R v Verrall [2013] 1 Qd R 587, cited
R v Young [2021] QCA…

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AGLC
R v McNicol [2022] QSC 67
Case
[2022] QSC 67
Decision Date

CaseChat Overview and Summary

In the case of R v McNicol, the appellant, Mr McNicol, sought to withdraw his plea of guilty to a charge of drug importation. The case was heard in the Queensland Court of Appeal. Mr McNicol argued that his plea was not voluntary as he was pressured by his lawyers and his mental health issues made him particularly vulnerable to such pressure. The Crown opposed the application to set aside the plea, arguing that the plea was voluntary and should stand.

The primary legal issue before the court was whether Mr McNicol's plea of guilty was voluntary. The court considered the principles established in previous cases, such as Edwards v The Queen, Lee v The Queen, and Meissner v The Queen, which emphasise the importance of voluntariness in a plea of guilty. The court also examined the conduct of Mr McNicol's lawyers and whether there was any undue pressure exerted upon him. Additionally, the court assessed the impact of Mr McNicol's mental health on his capacity to make a voluntary decision.

The court found that Mr McNicol's plea of guilty was voluntary. The evidence showed that Mr McNicol's lawyers had acted appropriately and had not pressured him into pleading guilty. The court also considered Mr McNicol's mental health but found that it did not affect his ability to understand the nature of the plea and its consequences. The court held that the plea was made knowingly, willingly, and voluntarily, and dismissed the application to withdraw the plea.

The court's final order was that the application to withdraw the plea of guilty was dismissed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The statement of facts records the prosecution’s rejection of the peptides explanation, but the acceptance of Mr McNicol’s criminal liability on a limited basis as:“29.The defendant was complicit in importing a marketable quantity of methylamphetamine because he intended that his conduct would aid in the commission of an offence by another person, but he was reckless as to the particular nature of the offence that the other person committed. In agreeing to take delivery and monitoring the arrival of the package, the defendant intended to aid another person in the commission of an offence, however he was reckless as to the substance that was being imported. In all of the circumstances, the defendant was aware of a substantial risk that the package contained a border controlled drug and having regard to the circumstances known to him it was unjustifiable to take that risk.”Evidence of Mr McNicol’s mental health There was evidence that Mr McNicol’s mental health was compromised at the time he entered the plea of guilty, and at other times. In 1957, in R v Presser,[18] Smith J explained the principles governing the assessment of an accused’s fitness for trial. The “Presser test” has been broadly adopted and applied ever since.[19] It was not submitted to me that Mr McNicol was not fit to plead. His case was:1.the plea was not a voluntary one as he was overborne by pressure from his lawyers; and2.his mental health made him especially vulnerable to that pressure.[18]Reported in 1958 in [1958] VR 45.[19]See recently R v Young [2021] QCA 131. Mr McNicol described his mental health issues in his affidavit in these terms:“18.I have been diagnosed with a number of mental health conditions.19.I was diagnosed with Depressive State Disorder by Dr John Brownhill in April 2021.20.I was diagnosed with Anxiety Disorder by Dr John Brownhill in April 2021.21.I am currently being treated for my mental health conditions by Dr John Brownhill who is a Psychologist and practices at Impact Health, Suite 1, Level 2, 3 Short Street, Southport.” Various medical reports and other materials were before me, but none of the doctors or other health professionals who authored the documents were called to give evidence. Dr John Mullett, Mr McNicol’s general practitioner, reported on 10 February 2021:“There has been a previous head injury with deformity palpable in the left frontal region. A CT examination was made 4th June 2018 and results were inconclusive and need to be followed up.A current CT is required and this would be best done in the community so as to get the optimal investigation done and any other investigations which may be indicated.” In a later report on 24 June 2021, Dr Mullett said:“Paul has been taking Oxycodone SR for many years and has been unable to reduce this below 240mg/day. There was a head injury approximately 1993. He can be vague at times and keeps questionable company. He has been referred to a pain clinic which he attends. He has a degree of lack of insight and judgement.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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