R v N - [2013] SADC 88

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v N
[2013] SADC 88
Reasons for Ruling of His Honour Judge Soulio
4 July 2013
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Defendant pleaded guilty to two counts of rape, one count of creating a risk of harm, and one count of attempting to dissuade a witness - defendant applied to withdraw his pleas of guilty.
Application dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 29, 48, 244. Part 8A, referred to.
Meissner v The Queen (1995) 184 CLR 132; R v Pugh (2005) 158 A Crim R 302; R v Wilkes (2001) 122 A Crim R 310; Maxwell v The Queen (1996) 184 CLR 501; R v Allison (2003) 138 A Crim R 378; R v Liberti (1995) 55 A Crim R 120; R v Roberts-Smith (1977) 16 SASR 147; R v Brooks (2007) 96 SASR 478; R v Campbell [2012] SASCFC 44; R v Boag (1994) 73 A Crim R 35; R v McCormack [2009] SADC 131; R v Liberti (19915) 55 A Crim R 120; The Police v Hellyer (2002) 218 LSJS 223; R v Clayton (1984) 35 SASR 232, considered.

R v N
[2013] SADC 88
Introduction

The defendant had been in a relationship with a woman, DZ, the complainant. Together they had a daughter. The relationship was tumultuous.[1] Her parents strongly disapproved. The two lived in separate houses. In late 2009 or early 2010 a Domestic Violence Order (‘DVO’) was made prohibiting the defendant contacting DZ. The defendant said that despite the DVO the relationship was ongoing but secretive. DZ denied any ongoing relationship after the imposition of the DVO.
[1] The defendant had been found guilty of assaulting DZ on 8 January 2008, and again on 14 December 2009.
On 8 February 2010 the defendant attended at DZ’s house at Paralowie. The defendant said he did so at her invitation. DZ said that the defendant entered her house without her consent. DZ said the defendant was carrying a knife. He struck DZ to the face. He raped her anally twice. He poured petrol into her mouth. He detained her against her will, and raped her vaginally. After leaving the house he engaged his sister to endeavour to persuade DZ to withdraw charges against him.
The defendant had originally been charged with three counts of rape, one count of endangering life, one count of aggravated kidnapping, and one count of attempting to dissuade a witness.
On 22 February 2010 the defendant pleaded guilty to two counts of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935, (‘CLCA’) one count of creating a risk of harm, contrary to s 29(3) CLCA, and one count of attempting to dissuade a witness, contrary to s 244(3) CLCA.
As a consequence of his pleas of guilty, the Director of Public Prosecutions (‘the DPP’) accepted a plea to the lesser charge of creating risk of harm, rather than endangering life, and entered nolle prosequi in relation to the charge of vaginal rape, and the charge of aggravated kidnapping.
The defendant applied to withdraw the pleas, which application was opposed. I dismiss the application and refuse leave to withdraw the pleas for the reasons set out below.
Written Application to Vacate Pleas
The basis of the defendant’s application is that he is not guilty of the charges, that the pleas were not entered out of a consciousness of guilt but due to improper advice and coercion on the part of his solicitor and counsel, and that, at the time of the offending in question, the defendant was suffering a recognised mental impairment as outlined in Part 8A CLCA.
The initial application to withdraw the pleas of guilty was filed on 22 May 2012 and was based entirely on the issue of mental competence. The grounds of that application were:
5.That the guilty pleas were unsound as the mental state of the defendant at the time of the offending behaviour comprised in all counts was such that he was or may have been mentally incompetent to commit the offences; and/or
6the guilty pleas were entered in circumstances where the defendant was ignorant of the legal and factual circumstances giving rise to a necessity that there first be an investigation pursuant to Part 8A,
7in all the circumstances surrounding the entry of the pleas including the instructions provided by the defendant to his former solicitors and counsel failed adequately to take into account the issue of his mental competence at the time of the offending behaviour in all counts, and/or
8in the interests of justice and to avoid the potential miscarriage of justice, there ought to be an inquiry or investigation into the mental state and competence of the defendant to commit offences comprised in counts 1, 2, 3 & 6 pursuant to Part 8A, which cannot proceed whilst the said pleas remain in place.
An amended application was filed on 3 September 2012 setting out further grounds on which the pleas should be withdrawn including the inadequacy of the legal advice provided to the defendant. The grounds of that application are as follows:
5.The guilty pleas were entered following upon improper or inappropriate pressure brought upon the defendant by his legal advisers at a very late stage and just before the trial which was listed for hearing on the day on which the pleas were entered.
6.The guilty pleas were entered in the absence of adequate, competent, and/or appropriate legal advice.
7.The guilty pleas were unsound as the extent of the defendant's understanding of the factual basis of the pleas had not been explored and by reason of the circumstances surrounding the entry of those pleas he did not have the benefit of competent legal advice thereon.
8The guilty pleas were unsound as the defendant's legal advisers failed to determine or explore the effect of the defendant's mental state and competence and in addition the effect of the intake of alcohol and/or drugs upon his behaviour at the time of the offending behaviour.
9.The guilty pleas were unsound as the mental state of the defendant at the time of the offending behaviour comprised in all counts was such that he was or may have been intoxicated and/or mentally incompetent to commit the offences.
10.The guilty pleas were entered in circumstances where the defendant was ignorant of the legal and factual circumstances giving rise to a necessity that there first be an investigation pursuant to Part 8A of the Criminal Law Consolidation Act 1935 into his mental competence to commit the offences.
11.For the forgoing reasons, in the interests of justice and to avoid a potential miscarriage of justice, the defendant ought to be permitted to withdraw the pleas of guilty.
The Law
Plea of Guilty
A plea of guilty by an accused person will be taken to be an admission of all of the elements of the offence to which the plea is entered. In Meissner v The Queen Brennan, Toohey and Dawson JJ held that:[2]
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not the person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in the person’s own interests. 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 the exercise of free choice in the person entering the plea.
[2] Meissner v The Queen (1995) 184 CLR 132 p 141.
No miscarriage of justice is said to occur, when a person enters a plea of guilty in an act of free choice, even if the person entering the plea is not actually guilty of the offence.[3]
[3] Meissner v The Queen (1995) 184 CLR 132 p 143-144, per Brennan, Toohey & McHugh JJ; p 148-149 per Deane J; R v Allison (2003) 138 A Crim R 378 [23], per Jarrad AJ.
However, it may not be critical that a court find that the plea that is sought to be withdrawn, was entered out of a consciousness of guilt.[4]
[4] Meissner v The Queen (1995) 184 CLR 132 p 157, per Dawson J; R v Pugh (2005) 158 A Crim R 302 p 348, per Gray J.
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.[5]
[5] Meissner v The Queen (1995) 184 CLR 132 p 157 per Dawson J; see also R v Pugh 158 A Crim R 302 p 311 [40] per Doyle CJ.
As a general rule, an informed and deliberate plea of guilty must be considered final.[6]
Withdrawal of Plea
[6] Maxwell v The Queen (1996) 184 CLR 501 p 510, per Dawson & McHugh JJ; R v Pugh (2005) 158 A Crim R 302, per Gray J [195], and see R v Clayton (1984) 35 SASR 232 p 234, per Wells J.
A court has a discretionary power to allow a plea of guilty to be withdrawn at any time prior to sentence being passed.[7] It should however, approach any application to withdraw a plea of guilty with caution.[8] There is a sound reason in policy to do so, and there is a public expectation that there be finality to legal proceedings.[9]
[7]    Maxwell v The Queen (1996) p 522, per Toohey J; R v Roberts-Smith (1977) 16 SASR 147 p 150, per Bray CJ.
[8]    R v Pugh (2005) 158 A Crim R 302 p 349, per Gray J.
[9]    R v Wilkes (2001) 122 A Crim R 310 p 315, per Hunt CJ.
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, or offences, charged.[10]
[10] R v Pugh (2005) 158 A Crim R 302 p 196, per Gray J; see also R v Liberti (1995) 55 A Crim R 120 p 122, per Kirby P.
The onus rests upon the person seeking to withdraw their plea of guilty to show that the circumstances in which the plea was entered would amount to a miscarriage of justice if the plea were allowed to stand.[11]
[11] R v Pugh (2005) 158 A Crim R 302 p 346, per Gray J.
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.[12]
[12] R v Pugh (2005) 158 A Crim R 302 p 311 [40], per Doyle CJ, p 348 [201] per Gray J; R v Brooks (2007) 96 SASR 478 [80]-[82].
The circumstances in which a court can allow an appeal against conviction recorded after a plea of guilty to the charge were summarised by Doyle CJ in R v Pugh.[13] The question is whether there has been a miscarriage of justice.[14] A plea may be withdrawn where the person charged did not appreciate the nature of the charge or did not intend to admit he was guilty of it.[15] The determination of the issues requires an assessment of the circumstances in which the pleas were entered and ultimately a decision as to whether it would be in the interests of justice to avoid a potential miscarriage of justice to allow the application.
[13] R v Pugh (2005) 158 A Crim R 302 [32]-[41].
[14] Meissner v The Queen (1995) 184 CLR 132 p 143-144; Maxwell v The Queen (1996) 184 CLR 501 p 511.
[15] See also R v Brooks (2007) 96 SASR 78 [68]-[83], per Doyle CJ.
In R v Campbell,[16] Gray J also considered the circumstances where a guilty plea had been entered following legal advice. His Honour said:[17]
Where a plea has been entered following legal advice, a withdrawal will only be warranted where it has been established that there has been a mistake, misunderstanding or improper inducement and there exists a substantial issue to be tried.
[16] R v Campbell [2012] SASCFC 44.
[17] R v Campbell [2012] SASCFC 44 [19].
In R v Wilkes,[18] the appellant had pleaded guilty to murder on the basis of advice from counsel, later conceded as being incorrect. In allowing the appeal Hunt CJ, with whom the other members of the court agreed, held that the appeal hinged on three matters, namely:[19]
(a)whether the advice given to the appellant was or was not imprudent and inappropriate;
(b) whether his plea was or was not attributable to a consciousness of guilt and;
(c)whether the material before this court shows that there is or is not a real question about his guilt.
[18] R v Wilkes (2001) 122 A Crim R 310.
[19] R v Wilkes (2001) 122 A Crim R 310 [20], per Hunt CJ.
The above mentioned considerations were said to be neither definitive nor exhaustive.[20]
[20] R v Pugh (2005) 158 A Crim R 302 [39], per Doyle CJ.
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.[21]
[21] R v Boag (1994) 73 A Crim R 35 p 36-37 per Hunt CJ.
Part 8A CLCA
Part 8
Section 267A(2) provides that the recreational use of a drug[22] is to be regarded as self-induced.
[22] Drug being defined under s 267A(1) CLCA as including alcohol or any other substance capable of affecting mental functioning.
Section 268(2) provides that a person whose consciousness, through self-induced intoxication, was affected to the point of criminal irresponsibility is nevertheless to be convicted of the offence.
Section 268(3)(a) provides an exception to s 268(2) where it is necessary for the prosecution to establish foresight of the consequences by an accused. However, s 268(3)(b) makes the offence of rape an exception to s 268(3)(a).
Part 8A
A person charged with an offence is presumed at law to have been mentally competent at the time of committing the act(s) constituting the alleged offence. The presumption can only be displaced by a finding of incompetence following an investigation under Part 8A.[23]
[23] Section 269D CLCA.
Mental impairment is defined under s 269A(1) as including:
(a)     a mental illness; or
(b)     an intellectual disability; or
(c)     a disability or impairment of the mind resulting from senility;
but does not include intoxication.
Intoxication is defined under s 269A(1) as meaning:
a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of intoxicants and will pass on metabolism or elimination of intoxicants from the body.
Section 269C defines mental incompetence as:
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a)     does not know the nature and quality of the conduct; or
(b)     does not know that the conduct is wrong; or
(c)     is unable to control the conduct.
The definition of mental impairment excludes intoxication, which is defined in s 269(1) as meaning:
A temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of intoxicants and will pass on metabolism or elimination of intoxicants from the body.
A defendant with an otherwise sound mind cannot argue that he has a mental impairment merely because he was under the influence of alcohol or drugs at the time of offending.
Factual Background
The Prosecution Case
On the prosecution case[24] the defendant and the complainant, DZ, had been in a relationship for a period of some three years, during which time they had a daughter, IZ. The complainant also had a daughter and a son from an earlier relationship. The complainant and the defendant did not live together during their relationship. She lived at Paralowie and the defendant lived at Salisbury Downs. However, she said that the defendant slept at her house once or twice a week. The complainant described the relationship as “on and off” but said that it finally ended in November of 2009.
[24] I have had regard, amongst other things, to the two declarations of the complainant.
In about January 2010, a DVO was imposed in the Elizabeth Magistrates Court.[25] The complainant said that the defendant did not attend at her residence from the time the order was imposed until the present offending on 8 February 2010.
[25] Subsequently after a trial in August 2010 the defendant was convicted of assaulting DZ, and her mother, and sentenced to imprisonment for six months.
On 8 February 2010 the complainant’s son was admitted to the Women’s and Children’s Hospital. At about 6.30pm that day, the complainant received a phone call from the defendant while she was at home. She said that the defendant became abusive before eventually hanging up. The complainant then attended the hospital with her parents. She returned home around 9.20pm and she put her children to bed. She noticed that she had 13 missed calls from the defendant.
Although she said that she had locked the front door after her parents had left, she could not remember whether the back door to the house was locked. The defendant entered the house. He asked her where she had been. She said that she had been at the hospital with her parents, visiting her son. The defendant struck her across the face with his fist. He then pulled a knife from the rear pocket of his pants. He brandished the knife at her. DZ said that she recognised the knife as one from his house.
The complainant noticed that the defendant had been drinking. She observed that his eyes and face were red and that he was sweating. She said “I didn’t think of it at the time but I know that [the defendant] has taken marijuana in the past and his eyes looked like someone that had taken drugs.”
The defendant said “This is the end, you are not going to throw me away again”. He struck her on the side of her head with his fist. He said, “You are not going to lie to me, I am going to finish it all today first you then [IZ] then myself”. He again punched her to the face, causing her to fall. He put the knife against her throat and said “Do you think I’m fucking joking?” and said “I want to fuck you. Take your pants off or I’ll take them off for you.”
While she was taking her pants off, the defendant was also taking his pants off. As he did so, a cigarette lighter fell from his pocket. He said words to the effect that “This is to set you alight later”.
He said “I’m going to fuck you like a whore, only whores get fucked up the arse.” He told her to lay down, and she lay face down on the couch. The defendant then cut through the back of her t-shirt and bra using a kitchen knife and said “I’m going to fuck you like a whore. You’re a slut.” The defendant then anally raped DZ.
The defendant went into the kitchen, brought back a cordless telephone, and told DZ to call her parents and get them over to the house. The defendant said that he wanted her parents to come over so that they could watch her die, and said that he would then “finish them off”.
He then pushed her into the kitchen and made her drink some alcohol. He told her to go to the bedroom and lay on the bed. While walking down the hallway, he pushed her into a bathroom. She could feel the knife between her shoulder blades. He told her to stand in the corner while he urinated. He then told her to flush the toilet which she did. They then walked to the bedroom.

After a conversation in the bedroom the defendant stabbed the bed five or six times with the knife, and stabbed the pillow on which DZ was laying. She had to move her head to avoid being stabbed. The defendant said “Don’t move your head because you’re going to get it anyway.”
The defendant then left the bedroom and threatened to engage in intercourse with DZ’S older daughter, before demanding that DZ go into the lounge room and lay down on the sofa. The defendant then said that he had made a will and left everything to his boys.[26] He then sat down on the couch and said “What the fuck am I doing? I can’t do this, my boys will cry. They’ll miss me, they love me, but I can do it to you.” The defendant then anally raped DZ again before getting dressed and telling DZ to do the same.
[26] His children from a former relationship.
The defendant told DZ to go to the kitchen and finish the alcoholic drinks. He then cut a section of a plastic drink bottle and placed a tissue inside the neck of the bottle, so as to fashion a funnel. He told DZ to go outside. He told her to kneel. He placed the cut off section of the bottle in her mouth. He picked up a bucket containing petrol which he handed to her. She assumed that he wanted her to put the petrol in her mouth but she did not pour it in. She said that she held the bucket to her mouth but did not tip her head back.
The defendant grabbed the bucket from her, and said, “Make sure you swallow.” He then poured the petrol into the funnel. She was able to partially redirect the flow of petrol out of her mouth, although she swallowed some of the petrol.
The defendant then said “Are you stupid? What are you swallowing it for?” When DZ responded that she was drinking it at his demand, he said “Sweetheart, you need to throw up.” She told the defendant that it was burning her mouth, throat and stomach. He walked her to the grass and said “Please, you have to throw up. Why did you swallow it, please throw up.”
The defendant then left DZ on the grass and poured the remaining petrol in the bucket into a green jerry can. She recognised the can as being similar to the one the defendant kept on his utility.
The defendant told DZ that she needed to shower. He helped her into the house and into the bathroom. On the way to the bathroom, she noticed that the knife, his mobile phone, her mobile phone and the house phone were on the dining room table. As they walked past, he took the lighter from his pocket and put it with the other items. He placed a bath towel on the bathroom floor and removed the complainant’s clothes. He helped her into the shower. He put her clothes on the floor of the shower and poured shampoo over them. He subsequently removed the clothes from the shower and then washed them in the bath. The defendant then had a shower while the complainant sat on the floor of the shower.
The defendant went to the complainant’s bedroom and returned with the knife, his mobile phone and the complainant’s mobile phone. He placed the phones on the bedside table and put the knife in the drawer of the bedside table. He closed the bedroom door and locked it. He placed a shelf against the door. He said that was so he could hear her if she tried to leave the bedroom. He said that he was going to take IZ with him when he left to make sure that the complainant didn’t ring the police. The defendant then lay on the bed and fell asleep at about 2.00am. The complainant said she did not sleep.
In the morning the defendant questioned whether the complainant would contact the police. She assured him that she would not. He said that he was sorry and that he wanted her to know how much he loved her. He asked to have sex with her. She did so because she wanted him to leave. The defendant proceeded to have vaginal intercourse with the complainant. She said that the defendant did not have the knife at that time and made no threats towards her. She thought that if she refused to have sex with him, he would become violent.
The defendant then dressed and placed the knife, and the complainant’s bra and top into the white bucket. He asked “Are you sure you’re not going to call them [the police]. I’m scared that you’re going to call them.” She again assured him that she would not. The defendant left carrying the jerry can and bucket. The complainant then took a padlock from the house and locked the gate and returned to the house and locked the windows and doors.
The complainant’s father attended at the house and observed her injuries and told her that they had to go to the police station. She told him that she had an appointment to see her son’s specialist at the hospital. She showered and dressed. She and her father then attended the hospital, and then the Adelaide Police Station where she made a formal complaint. The defendant was arrested.
On the morning of 11 February 2010, DZ received a phone call from the defendant’s sister who said the defendant had asked her to ask the complainant to drop the rape charges. The defendant’s sister said that he was in big trouble and that he was facing a lengthy sentence of imprisonment. Later that day the defendant’s sister again called. She said that the defendant had asked her to call again, and that he was willing to give the complainant $2,000 to drop the charges.
On Friday 12 February 2010, the defendant’s sister again called, and the complainant called back. The complainant was again asked to withdraw the rape allegations. The defendant had asked his sister to pass on the message that he was willing to give the complainant his motor vehicle. The defendant’s sister called again on 16 or 17 February 2010 asking if the complainant had thought about the defendant’s offer.
The Defendant’s Original Version of Events
I received into evidence the defendant’s original instructions provided to and noted by his solicitor, Ms Diamandi, on 27 July 2010. The defendant had provided a detailed version of events. He said that he and the complainant were maintaining an ongoing sexual relationship in the months leading up to 8 February 2010, but the relationship was kept secret because the complainant did not want her parents to know.
The defendant instructed that on the evening of 8 February 2010 he attended a hotel and had dinner and consumed two or three beers. It was very hot that day and that is why he may have appeared to the complainant to be red and sweating.
He called the complainant a number of times that night because they were supposed to go to the hospital together to see her son and he was unsure about the arrangements.
He attended the Paralowie house later that evening after the complainant called him at 9.15pm and invited him over. The gate to the property was open but the back door was locked. He knocked and the complainant let him into the house.
He denied that he had a knife when he arrived. He also denied threatening the complainant with a knife at any point. He said the complainant tried to kiss him as he went into the house. He accused her of using him because she wanted money. They argued about her parents. He said the complainant had been drinking that night.
He said she started crying and the two of them went into the lounge room, where she started kissing him. She told him that she had her period and then she performed fellatio on him. She took her clothes off. He denied cutting off her clothes. The complainant took his penis, put it near her anus and told him to push it into her anus slowly. He said that they had had anal sex previously and that the sexual intercourse that night was consensual.
He said that after having sexual intercourse he asked her to get her parents over to the house to show that they were continuing their relationship. She said that her father would call the police because of the restraining order. They went outside for a cigarette and the complainant had another drink. They then went to the bedroom and lay on the bed. The complainant initiated sexual activity. The complainant put her finger in the defendant’s anus. He hit her in the face with an open hand. She fell off the bed and started to cry. He fell asleep.
When the defendant awoke, the complainant was standing next to the bed. He heard her put something on the table and saw that it was a knife. He asked “why did you try to stab me”. The defendant grabbed the knife, stabbed the pillow twice and told her that if she wanted to stab him that she should do it in that way. The complainant ran out of the room.
The defendant found the complainant in the backyard. The defendant said that she was probably drunk. As she ran past him in the backyard, the defendant grabbed her and she “hit up against the shed”. She fell to the ground and said that she could not breathe because she had been drinking petrol on the lawn. He saw a bucket containing petrol next to her. He went into the house and cut the top off a plastic bottle and placed tissues inside the neck of the bottle. He said he then used the filter he had just crafted to pour the petrol back into the can.
He took the complainant to the shower and washed her and her clothes. He also had a shower. He and the complainant changed into other clothes and went to bed. He said that he locked the bedroom door as he always did but denied putting a shelf against the door.
He said IZ woke at around 1.30am and that the complainant took her to the lounge room to give her a bottle. He went back to sleep and didn’t wake up until 5.30am. The complainant later came back into the bedroom and initiated sexual activity with him. They had vaginal sexual intercourse. Afterwards, she went outside for a cigarette and he got dressed for work and left the house.
Defendant’s Instructions on 18 February 2011
I received into evidence notes of further instructions provided by the defendant during a conference with Ms Diamandi and counsel, Mr Apps, via video link with Mobilong Prison on 18 February 2011. The instructions he provided were noted by both Ms Diamandi and Mr Apps and were in broadly similar terms, but contained some further detail.
The defendant told Ms Diamandi and Mr Apps that he had had anal intercourse with the complainant at least 100 times during their three year relationship. However, he only had anal intercourse when she wanted to. He said that he did not like it.
He reaffirmed that he and the complainant were maintaining an ongoing sexual relationship in the months leading up to 8 February 2010. He stated that they were having daily contact. He would stay at her house every night from Monday to Friday, at the invitation of the complainant. He did not have a key but the complainant would let him in when he got there. He would leave early in the morning due to the restraining order in place at the time.
He said that on 8 February 2010, they came to an agreement that she would take him to the hospital to see her son. Although she said she would pick him up, she did not arrive. He noticed missed calls from a private number on his mobile phone. He thought the calls may have been from the complainant, but when he called back there was no answer.
He drove to her house and parked in the Woolworths car park nearby. The side gate to the Paralowie property was open. The back door to the house was locked so he knocked on the window. The complainant saw him and let him in through the back door. He said the complainant had been drinking before he arrived. She continued to drink while he was there.
She attempted to kiss him as he went into the house. The defendant said that he was upset. They argued about who went to the hospital with her that day. He went into the lounge room and was joined by the complainant. He asked her when they were going to start living together. She said that she would tell her parents the next day. He told her to call her parents to tell them now. She did so but said that the line was busy. He told her that she was lying. She said that her father would call the police if he found out. She became upset and left the lounge room. She went into the kitchen and then outside the house.
When she came back inside he said that she appeared drunk. She indicated that she wished to have intercourse. The defendant told her that he did not want to do this because he was tired and needed to go to work in the morning. The complainant was upset because he did not want to have intercourse. She attempted to touch his penis but he pushed her hand away. She said that she did not need him and got a rubber penis out. She inserted the rubber penis into her vagina and got the defendant to play with her. As she was touching his penis, the complainant put her finger in the defendant’s anus. As a result, he hit her in the face, and she fell off the bed and onto the floor. She hit her back or side on the wardrobe.
He later fell asleep on the bed and when he awoke the complainant was standing next to the bed. He told her to put on the light. He heard her try to put something down on the bedside table. When he turned the light on and saw that it was a knife, he asked her “what the fuck is that”. The defendant picked up the knife and began to stab the pillow. He estimated that he stabbed the bed about two or three times. As he stabbed the bed he told her that if she wanted to stab him that she should do it in this way.
The complainant ran out of the bedroom. She came back in with her top in her hand. She told him to buy her another top. He grabbed it and cut it with the knife. She again ran out of the bedroom.
He went to look for the complainant outside. She was kneeling on the lawn pretending to vomit. She said that she had drunk some petrol. She said words to the effect that because she was scared, she was trying to hurt herself. He asked her where she got the petrol from, and she directed him to a white bucket which contained about two litres of petrol. A green jerry can was next to the bucket which belonged to the complainant. He cut the top off a soft drink bottle to craft a funnel. He placed tissues inside the neck of the bottle to filter the petrol. He used the funnel to decant the petrol from the bucket back into the jerry can.
The defendant said he left her house around 5am. He said that everything was fine. When he left, he did not notice any bruising to the complainant’s face. He called the complainant that day and she was happy.
Defendant’s Instructions on 22 February 2011
The defendant gave further instructions, noted by Ms Diamandi on 22 February 2011, in which he sought to explain certain aspects of the prosecution case.
The defendant said that he slapped the complainant once across the face with an open hand. She had a red mark on her face as a result. The marks on her arms were as a result of him holding her during sex that night. He said she would have other marks on her arms from previous times they had had sex, and that the complainant would bruise easily. He said that the scratch on her back was as a result of sitting up against a rail outside.
He said that he took the knife with him after he left the complainant’s house. He also took the bucket, the petrol can and her jumper, and put these items in his van. He said he took those items because the can was old and the petrol belonged to him. He took the bucket and the petrol to work. He threw the jumper away.
When he got home after work on 9 February 2010, he thought someone had been in his house. He took a knife from the knife block and looked around the house. He said he put the knife in his pocket and inadvertently took it with him to his brother-in-law’s house. He threw the knife in the bin there because he did not want to upset his sister. He knew that the complainant had said something to police about petrol so he told his sister and brother-in-law to get rid of it “in case I got into trouble”.
Court Proceedings
Given the very lengthy period between the pleas of guilty, and the hearing of the final application to withdraw the pleas, it is necessary to set out something of the procedural history of this matter.
On 16 August 2010 the defendant was arraigned in this Court on an Information charging him with three counts of rape, one count of endangering life, one count of aggravated kidnapping and one count of attempting to dissuade a witness. He entered pleas of not guilty to all charges.
The matter proceeded to a directions hearing on 14 September 2010 and was listed for trial on 21 February 2011. The directions hearing judge inquired as to whether an interpreter would be required at trial and received an assurance that no interpreter would be needed.
By the time of that directions hearing the defendant had been found guilty of assault after a contested trial in the Elizabeth Magistrates Court at which he gave evidence.
Further directions hearings took place on 12 October 2010 and 9 February 2011. On the date set for trial, initially no judge was available. I called the matter on that day for directions, with a view to commencing the trial the following day. The defendant was not present at that directions hearing.
Counsel for the DPP, Mr Rofe QC, advised that a “short pre-trial argument” would be required. Although no Rule 9 DCCR notice had been filed, Mr Apps foreshadowed the need for a voir dire on the issue of admissibility of evidence as to the “previous history” between the defendant and the complainant.
On the day of trial the matter was called on at 12.00pm. Mr Apps informed the court that during that morning he and his instructing solicitor had had discussions with the defendant, and that the matter had resolved on the basis that the defendant would plead guilty to certain charges. The defendant was then arraigned and, as I have said, entered pleas of guilty in relation to Counts 1, 2 and 6 as charged on the Information. He also pleaded guilty to an alternative offence in relation to Count 3, namely creating risk of harm. Mr Apps then sought an adjournment to obtain medical reports to assist in making submissions as to sentence.
On 12 April 2011, the date set for sentencing submissions, Mr Apps sought, and was granted, leave to withdraw. Mr Stevens then appeared and said he had sought funding for a possible application to strike out the pleas.
On subsequent occasions, Mr Niarchos appeared as counsel for the defendant and requested adjournments on a number of occasions to seek psychiatric reports.
On 29 February 2012 when the matter was again listed for submissions, Mr Niarchos intimated that an application to withdraw the pleas may be filed on the grounds that the defendant was suffering a psychiatric or mental condition at the time of offending.
On 16 March 2012 Mr Niarchos informed the court that the defendant wished to proceed with the application to withdraw his pleas. A timetable was set for the filing of the application, supporting material, and answering material. There were however, a number of delays.
At a directions hearing on 9 July 2012 I enquired as to the basis on which the application was made and observed that the application, as it stood, was based entirely on the issue of mental incompetence. Mr Niarchos outlined the basis on which the application was made:
My reading of it is that in context what he’s saying is that he put a version to his solicitor which he actually states is incorrect. That what he’s saying and in the background he is saying that he has no memory of the events and when he pleaded guilty he gave a version to his solicitor, but he’s not now putting in issue the factual basis for the charge. I think in answer to your question, I don’t believe he is setting about trying to dispute the factual basis, so there is no need for an affidavit, for instance, from the complainant in relation to the events themselves. He’s put in issue the question of the relationship between the two leading up to the events, which is factually different to that set out in the statement of the complainant. She was saying there was no relationship, in fact, at the time and that he turned up at the house somewhat unannounced and the offences took place.

Mr Niarchos also raised the issues of lack of preparation, lack of advice, and of the defendant being placed under pressure to admit the prosecution allegations.
The basis of the application, it might be said, was evolving throughout the course of the extended interlocutory process.
On 10 August 2012 Mr Illingworth, counsel for the DPP, applied to dismiss the defendant’s application on the basis that that application was incompetent given that intoxication and consumption of drugs were excluded as a basis for a finding of not guilty under Part 8A CLCA. That preliminary application was listed for hearing on 7 December 2012.
Mr Niarchos reiterated that lack of advice, and coercion, on the part of the defendant’s former representative, was the primary foundation of the application. He also reiterated that while the defendant disputed the nature of the relationship with the complainant, he did not dispute the complainant’s version of events but said rather that the defendant had no recollection of anything occurring that night.
On 7 December 2012 the application to dismiss the defendant’s application was heard. Mr Illingworth submitted that a Part 8A defence was not open to the defendant principally because the psychological and psychiatric reports, in general, did not support such a defence. Mr Niarchos advanced the submission that, as former counsel had not pursued the issue, the defendant had been denied a s 269E CLCA hearing and that an investigation should have been undertaken prior to trial.
I formed the view that there was a sufficient suggestion in the expert reports to raise a question as to the defendant’s mental competence at the time of his offending. I refused the Director’s application to dismiss the defendant’s application to vacate his plea.
Further directions hearings took place on 7 March 2013, 22 March 2013, 15 May 2013 and 16 May 2013 regarding the filing of documents and the timetable for the hearing of the present application on 20 May 2013.
The Hearing
Evidence of the Defendant
The affidavits of the defendant sworn in support of his application were received into evidence and formed part of his evidence-in-chief. In his affidavit sworn 21 May 2012, the defendant complained that he never received written legal advice. He did not provide instructions that he would plead guilty until the day he did so. He had not given a comprehensive statement, nor had he ever been asked to sign his instructions. He did not receive specific advice as to whether he should plead guilty, until the day he did so. He was told to accept the offer made by the prosecution, as it was likely he would be found guilty if he proceeded to trial.
He asserted that he had not told his lawyers everything that had happened, and all that he could remember. In fact, quite to the contrary, he gave his lawyers a very detailed description of the events of the night.
Despite the submission by his counsel that the defendant did not dispute the factual circumstances alleged by the complainant, with the exception of the question as to whether there was any contact between them in the months leading up to the offending, the defendant deposed in the affidavit to a version of events, in part consistent with his initial instructions, denying any wrongdoing.
He said, by his affidavit, that his former lawyers had difficulty hearing him by audiovisual link from Mobilong Prison. He said that Ms Diamandi visited him in the holding cells in this Court, and threw the photographs of the victim’s bruises onto the table and said “it’s hard to say this is consensual”. He said that his solicitor said to him a few times that it would be most sensible if he pleaded guilty. He formed the view that he had no chance of successfully defending the charges, and that his lawyers did not even know his full story. He said he had been waiting for months to tell his story and they were still not sure what he was saying. He complained that the issue of his sister discovering the knife was only mentioned on the morning of trial. He suggested that his counsel told him that if he pleaded not guilty he would be imprisoned for 12 years, and that he was 75 per cent likely to be convicted. He said that he told his lawyers time and again that he did not do what was alleged, but they left him with the impression that he could not win and therefore he simply took their advice to plead guilty.
In the affidavit he then went on to describe the consumption of a considerable amount of alcohol, the smoking of marijuana, and the consumption of amphetamines on the night of the offending. He said as a result of that consumption he felt as though something bad was happening to him and that he felt nervous. He received a phone call from the complainant but could not remember the conversation. The next memory he had was of IZ waking up, and the complainant laying next to him in the bedroom at the Paralowie house.
He suggested that subsequently he and the complainant had consensual vaginal intercourse. He said that afterwards the complainant pointed to the bucket and jerry can and told him to take them away because she didn’t want them there. He then left to go to work and the complainant walked him to the gate.
He tried to call her a number of times later that day, unsuccessfully. He later received a call saying that police were at his house. He later drove to his house and the back door was open. He picked up a knife from the kitchen knife block. He said he was so distressed he thought he would stab himself if the police came to arrest him. He said that knife ended up in the bin at his sister’s house.
He said in his affidavit:
I find it difficult to believe that I did do all the horrible and terrible things that [DZ] states I did or said to her. I entered my pleas of guilty without any memory of those events and in the belief that [DZ] has told the truth.
He complained that he was not given any advice about obtaining a psychiatric report to do with his mental state prior to his plea of guilty. He conceded however that “I had not told my lawyers that I had been drinking, that I had taken cannabis and speed beforehand and I had not told them I had no memory of any of the events or offending conduct.”
He complained that if he had been advised that his mental state at the time of the offending was relevant to the issue of guilt, and that he should see a psychiatrist to obtain an opinion about such matters, he would have asked for that to be arranged before he entered pleas of guilty.
He said that he accepted that he did the things DZ recounted, but because he had no memory of doing them, and because of the surrounding circumstances, including taking alcohol and drugs, he should be permitted to withdraw the pleas and undergo an investigation as to his mental competence.
In evidence-in-chief, the defendant expanded upon his memory of his state of mind on the night of the offending. He agreed that from the time of leaving the hotel until waking up at DZ’s house he had essentially no memory of events. He was asked whether he wished to add anything to that in relation to his memory and said “I remember I was very drunk, paranoid.” And said that he remembered talking to himself, and remembered “funny noises, bees noises” at the house. He said that he experienced seeing black spots and hearing the noise of bees. Upon hearing that noise he believed there were bees there, and he felt paranoid and as though he had been attacked by bees. He said he did not know if that was real or not.
The defendant was subjected to a careful cross-examination by counsel for the DPP, Mr Longson.
The defendant agreed that he had been charged with assaulting the complainant and one of her parents and that those charges were determined at trial in the Elizabeth Magistrates Court prior to the pleas in this matter. Mr Apps appeared as his counsel in that trial. The defendant had given evidence. He was found guilty, and was sentenced to six months imprisonment. He agreed that he was still happy for Ms Diamandi and Mr Apps to represent him in relation to the present charges. He felt Mr Apps had “done a good job”.
Following the incident which gave rise to those charges the defendant agreed that a restraining order was imposed. He maintained that he was still visiting DZ, but hiding that fact from her parents by attending late at night and parking his car some distance away from the Paralowie house. He agreed that subsequent to the restraining order he did not have a key to the Paralowie house.
He said that on 8 February 2010 he consumed one or two beers after work, had a couple of beers at the hotel he attended, and then had a substantial meal. He then switched to drinking whisky and had four to six drinks, two “little pipes” of cannabis, and amphetamines which were put into his drink, albeit with his knowledge.
In cross-examination the defendant was taken through his initial instructions to Ms Diamandi, and agreed that, in effect, all that he had told her was untrue. He agreed that he probably told Ms Diamandi in October 2010 that he would be prepared to plead guilty to assault. He agreed that he was told that if the prosecution were not willing to negotiate the only choice would be to either plead guilty or go to trial.
He agreed that during the video conference with Ms Diamandi and Mr Apps on 18 February 2011, he had provided instructions regarding his consumption of intoxicating substances, and the events of the night, and that essentially all that he had told his lawyers were lies.
In relation to the discussion on the day of plea the following passage of evidence is pertinent:[27]
[27] The defendant agreed that he understood English language. I formed the view that his English was not fluent, but he appeared to understand all questions that were put to him, and provided appropriate answers. No legal representative in the past has suggested that he required an interpreter. Were he to have requested an interpreter, either directly or through his representatives, one would have been provided. I would have been sympathetic to any such request. I enquired of his present counsel, Mr Niarchos, who is experienced counsel, and indeed experienced in the needs of those who require assistance with English, as to whether he had formed the view that the defendant required the assistance of an interpreter. Mr Niarchos assured me that the defendant did not.
QYou had always told Ms Diamandi and Mr Apps that you were not guilty of these charges. Is that right
AYes.
QYou didn’t do any of the things that [DZ] said.
AYes.
QAnd you asked Ms Diamandi in the cells on the 22^nd about a deal. You brought up that topic.
AYes. I don’t know who bring this topic – yes, maybe, yes.
QAnd she told you that if you pleaded guilty, it means that you had sex with [DZ] without her consent. She told you that, didn’t she.
AShe say that after I plead guilty, if I plead guilty, that mean – I think that’s all happened before where she asked me to plead guilty of them, then “you have to admit you have not consensual sex with [DZ]” and then I ask for the deal.
QShe never asked you to plead guilty to anything did she.
AWho.
QMs Diamandi.
ANo, I don’t think so.
The defendant reiterated, in cross-examination, that he had no memory of any of the sexual activity, in respect of which he had pleaded guilty.
He agreed that Mr Apps had raised with him issues in the case which might present a difficulty in the defence of the charges, including what had happened with the petrol, the knife, and the issue of the injuries to DZ’s face. He said that whereas he didn’t in fact remember anything about the evening, he told Mr Apps, in order to explain the bruising to DZ’s face, that “I hit her maybe once, maybe more”. He said he continued to lie about the bruises in that way. He said that he put the jerry can of petrol under the carport so it was not in the sun. He agreed that he arranged for his brother-in-law to move the petrol, after he found out that he was charged with the offences.
The defendant’s signed instructions, provided on the morning he entered pleas of guilty, were received into evidence. By those written instructions the defendant confirmed that he had considered his position, and his plea, and that he had received advice from his legal representatives about the difficulties faced in defending the matter should the matter proceed to trial. Those difficulties related to the presence of the petrol can, and the knife, and the injuries sustained by DZ. The defendant provided instructions to plead guilty and authorised his representatives to negotiate a plea. The instructions also included the statement that:
I understand that by pleading guilty I admit that I did the things [DZ] said in her statement. I understand that I will be sentenced to a lengthy term of imprisonment but I will receive a discount from the sentence because I have pleaded guilty. I understand that my lawyers cannot guarantee the length of time I will receive.
Psychiatric and Psychological Evidence
The defendant tendered two reports of Dr Raeside, psychologist, and two reports of Mr Balfour, psychologist, and two reports of Dr White, psychologist.
Mr Balfour
Mr Balfour saw the defendant on 9 August 2011. The defendant told Mr Balfour that there was no family history of mental illness. The defendant had become depressed in relation to relationship problems. The defendant conceded that he “had a temper”.
The defendant told Mr Balfour that he recalled having four alcoholic drinks on the night of the offending, having smoked two pipes of cannabis, and having consumed amphetamines in a drink. After smoking the cannabis he said he felt paranoid. He did not experience any hallucinatory phenomena. He had no recollection of his offending behaviour.
Mr Balfour found the defendant to be suffering from an adjustment disorder. However, he was not prepared to find that the defendant was mentally incompetent. In evidence Mr Balfour said it was not uncommon for a person who is charged with serious criminal offences to develop an adjustment disorder, and expressed the opinion that it is clear there were relationship problems leading up to the commission of the alleged offences that could have caused an adjustment disorder, and the serious legal consequences that followed the arrest would have exacerbated that disorder.
Mr Balfour then considered the question as to whether the defendant had a mental impairment at the time of the offending. Accepting the defendant’s account, he expressed the opinion that the defendant was suffering from an adjustment disorder characterised by depressive and anxious features at the time of the offending, and acute paranoia brought on by smoking cannabis and exacerbated by amphetamine use.
In evidence, he maintained the conclusions reached in his reports, namely that there was nothing in the history provided by the defendant to suggest that the defendant experienced psychotic symptoms or hallucinatory phenomena on the night of 8 February 2010.
Mr Balfour came to the conclusion that the defendant was not experiencing a drug induced psychotic episode at the time of offending. He was of the opinion that the defendant did not suffer from a psychotic break from reality.
The defendant’s adjustment disorder could satisfy the legal criteria for having a mental impairment. However, Mr Balfour said that an adjustment disorder could not result in the impairment of an individual’s conduct at the time of a crime.
Mr Balfour concluded that, on the balance of probabilities, the defendant would have been able to sufficiently appreciate the nature and quality of his actions and their wrongfulness. Although the defendant was significantly intoxicated, he was able to sufficiently control his conduct.
Mr Balfour expressed the opinion, and I find, that the defendant’s behaviour was consistent with acute intoxication, which impaired his social judgment, made him behaviourally disinhibited and made him emotionally labile and angry.
Dr Raeside
Contrary to his instructions to his solicitors, the defendant provided to Dr Raeside, a history of having consumed a significant amount of alcohol, and told Dr Raeside that “he had never drunk that much before in his life”. He told Dr Raeside he had a couple of puffs of marijuana and then resumed drinking. He started getting paranoid. He was then offered what he understood to be amphetamines which was mixed into his drink.
He said he went into the car park and recalled DZ ringing him to see if he was coming home. He drove to her house. He said he parked in the car park of a nearby supermarket and walked to her house. The defendant told Dr Raeside that he had flashes of memory of the two of them arguing, and his next memory was of waking at 1.30am at DZ’s house. He again awoke and had a drink and went to the toilet and then went back to sleep. His next memory was of an alarm going off to wake him for work. He told Dr Raeside that the defendant and DZ had consensual sex, again largely at her instigation. The defendant said he went to work as usual, and was not aware of anything much that had happened during the night.
Dr Raeside concluded that the defendant may have been suffering an adjustment disorder with mixed anxiety and depressed mood in the lead up to and at the time of the alleged offences, but that did not represent a severe mental illness. It would not account for the defendant’s behaviour on the night. There was no evidence of any psychotic illness, or post-traumatic stress disorder before or after the offending. The history did not suggest an underlying personality disorder. Dr Raeside said that apart from the adjustment disorder he could find no evidence that the defendant was suffering any significant mental impairment at the time of the alleged offending. He did not consider intoxication with alcohol, amphetamine or marijuana to be a mental impairment pursuant to the Act.
According to Dr Raeside, there was no indication that even in the acute intoxicated state the defendant would have been unable to know the nature and quality of his alleged actions, or the wrongfulness of them. There is no indication that he would have been totally unable to control his conduct. There may have been significant disinhibiting effects from the intoxication causing him to act in ways that he might not ordinarily have done were he sober. Dr Raeside did not support a mental incompetence defence. He did not support an intoxication defence, were one to be available, notwithstanding the suggestion of a lack of memory, given the purposeful behaviour described by DZ.
The defendant’s account of having little or no memory of the events of the evening is, of course, at odds with the instructions given to his legal representatives consistently through the course of representing him up until the time of trial.
Dr Raeside provided an addendum report on 15 February 2012 responding to particular questions by the defendant’s new legal representatives. His opinion remained essentially unchanged. Dr Raeside was prepared to accept that the defendant suffered an adjustment disorder at the time of the offending. However, he was not prepared to make a finding that the defendant was mentally incompetent.
Dr White
Dr White had also diagnosed the defendant as suffering from an adjustment disorder. He was also of the view, that following psychometric testing, that the defendant was likely to satisfy the DSM-IV diagnostic criteria for Post Traumatic Stress Disorder (‘PTSD'). Although no event was identified as being causative of a PTSD, Dr White did postulate that being arrested, the loss or likely loss of freedoms and normal life experiences could all constitute such a traumatic experience, such as to lead to the development of PTSD, such events of course post dated the offending.
Dr White’s view was based, in part, on an assumption that the defendant had unwittingly consumed drugs in his drink, a statement at odds with the defendant’s evidence.

Dr White also agreed that an adjustment disorder is a common disorder amongst persons charged with serious criminal offences. Dr White was prepared to find that the defendant was mentally incompetent only if the affects of alcohol and drugs were weighted as a component of the mental impairment.
Evidence of Ms Diamandi
I accept the evidence of Ms Diamandi. She was a careful witness who made appropriate concessions in cross-examination.
Ms Diamandi confirmed that the defendant initially provided detailed instructions consistent with innocence. She said that during a conference on 21 October 2010, the defendant agreed to plead guilty to assault on the basis that he had struck DZ in the face. She said that when the defendant suggested that he would plead guilty to assault, she advised him that the DPP would only accept pleas to the offences as charged. The defendant was advised of the benefit of pleading guilty. She informed him that he would receive credit if he pleaded guilty. She said that he understood this advice.
I accept Ms Diamandi’s evidence that, at the conclusion of the conference on 18 February 2011, to which I have referred, the defendant raised the issue of pleading guilty, and inquired as to the sentence he might receive. She told the defendant he should think about that decision over the weekend.
Ms Diamandi said that, given her instructions, she had proceeded on the assumption that the matter would go to trial on all charges. However, during a telephone conversation on 21 February 2011, the defendant asked Ms Diamandi if the DPP had made an offer and whether the DPP would drop any of the charges. She advised him that he would need to plead guilty to all charges as the DPP were unwilling to drop any of them. She reiterated that by pleading guilty, the defendant would be admitting to having sex with the complainant without her consent. The defendant also asked what sentence he could expect if he pleaded guilty. Ms Diamandi informed him the issue of sentence was a matter for the judge.
Ms Diamandi took instructions from the defendant in the cells of this Court on 22 February 2011. She conveyed to the defendant her concerns that the complainant’s injuries appeared to be the result of more than one blow to the face. The defendant then admitted that he had struck DZ more than once. Ms Diamandi informed the defendant of the difficulties she assessed in defending the charges. She expressed her opinion that the jury may be told about previous assaults perpetrated upon DZ. Furthermore, there were difficulties in relation to the fact that he had asked his relatives to hide the knife and petrol can.
The defendant asked what he could expect in terms of a prison sentence if he pleaded guilty. Ms Diamandi advised him that he would be looking at “4 to 6 or 7 years” if he pleaded guilty. If not, he could expect “10 to 12 years” in prison if he was found guilty by the jury. She stressed that these were estimates and that it was not up to her, but the judge. She told him that if he wished to go to trial, that was still an option.
The defendant said that he was not sure what he should do, and that it may be in his best interests to plead guilty. Ms Diamandi informed him that only he could make that decision, but said that he would be making a sensible choice if he did decide to plead guilty.
Mr Apps then joined the conference. Ms Diamandi said that Mr Apps advised the defendant along similar lines. The defendant then said that he would plead guilty and signed instructions to that effect. He then asked counsel to see whether any of the charges could be withdrawn.
Evidence of Mr Apps
Mr Apps is an experienced criminal barrister who has practiced both in the Crown prosecution service, and at the independent Bar. I accept him as a witness of truth.
He acted for the defendant in the summary trial at the Elizabeth Magistrates Court where the defendant was answering a charge of having assaulted DZ and her mother. He was briefed in relation to the present charges. Mr Apps read the brief in detail on 12 and 13 February 2010. He spoke with Ms Diamandi on 14 February 2010, and then continued preparation for trial during that week. He regarded the instructions with which he had been provided as an adequate basis upon which to prepare the defence.
In preparing the matter for trial he had concerns about the defendant’s version of events. He had a conversation with the defendant, by video link to Mobilong Prison. He understood, up until the time of that discussion, that the defendant intended pleading not guilty. He recalled the defendant raising the issue of a negotiated resolution of the charges. He became aware that the defendant had later telephoned Ms Diamandi and again raised the possibility of a resolution of the charges. He attended on the defendant in the holding cells in this Court on 22 February 2010. He said, in evidence, in response to direct questions from Mr Longson, that he did not remove from the defendant the right to decide his plea, nor did he tell the defendant he had to plead guilty, nor that it was in the defendant’s best interests to plead guilty. Mr Apps said he did have a view that the case against the defendant was a strong case.
Mr Apps confirmed that the defendant did not ever say that he had consumed cannabis, or amphetamines, nor did the defendant say that he felt like he was being attacked by a swarm of bees or was seeing black spots. Mr Apps said that if that had been mentioned, however late in the preparation of the case, he would have explored that further. Mr Apps said that it seemed to him that the defendant purported to have a good memory of what had happened on the night of 8 February and the morning of 9 February 2010.
In cross-examination Mr Apps agreed that he had an understanding that the defendant’s position was that the relationship with DZ continued during the period the DVO was in place. Mr Apps said that, based on his memory, the defendant’s instructions were that an arrangement had been made for the defendant to attend at DZ’s house on the night of the offending.
Mr Apps agreed that if there were witnesses who could confirm that the defendant was attending at DZ’s house during the period between the imposition of the DVO and the offending, that was a relevant matter to be explored. He agreed that would be evidence which might counter the suggestion that the defendant had broken into the house on 8 February 2010, and counter the denial that there was any ongoing sexual relationship.
However Mr Apps said, and I accept, that evidence that there may have been contact during that period, and even evidence that there was an ongoing relationship, may have to be considered, but whether it would “seriously go to his defence I don’t know, given the injuries and all the rest of it”. Mr Apps said that the defendant never mentioned that anyone had seen him attending at DZ’s house, and indeed the defendant said that he used to sneak into the house. He agreed that statements should have been taken from possible and prospective witnesses on that issue. He also agreed that in hindsight the preparation of the defence should have involved a request for the telephone records of calls between the defendant and DZ going back to the time of the restraining order, to determine whether or not there had been telephone contact as asserted by the defendant.
Mr Apps said in response to a direct question in cross-examination, that even had he been in possession of statements from independent witnesses which undermined DZ as to the nature of the relationship, it would have not have changed his view. Mr Apps said that although such evidence might tend to affect the complainant’s credibility, given, in effect, the objective evidence regarding the injuries sustained by DZ, together with his earlier expressed concerns regarding the presence of the knife, the petrol can and the like, his view as to the difficulties faced by the defence would have remained much the same.
Mr Apps said that given the instructions with which he was provided he did not specifically put DZ’s allegations, that the defendant appeared red and sweating and as though he had taken drugs to the defendant. Mr Apps said that the instructions were clear that the defendant had consumed some alcohol, but that no mention was made of the consumption of any drugs.
Mr Apps said that he was at pains to explain to the defendant that by pleading guilty the defendant would be admitting that he performed the acts alleged by DZ to have been committed against her. That is consistent with the contents of the written instructions provided on the morning of trial.
Mr Apps agreed that in giving advice as to the discount that might be expected for a plea of guilty, at such a late stage, a discount of 10 per cent, or even perhaps five per cent, would be appropriate. Mr Apps sad that he would not give advice that upon a plea of guilty the defendant might face a sentence of between four and seven years, but face a sentence of 10 to 12 years if found guilty. He did not give such advice, and did not recall such advice being given by Ms Diamandi.
Mr Apps agreed that he gave the defendant advice about the difficulties facing defending the charges. He said that both he and Ms Diamandi made it abundantly clear that if the defendant pleaded guilty he would face severe consequences, that is, a significant sentence of imprisonment.
Defendant’s Criticism of Trial Preparation and Legal Advice
Trial Preparation
Mr Niarchos made a number of criticisms of the preparation undertaken by Ms Diamandi and Mr Apps leading up to the defendant’s trial on 22 February 2011. He submitted that Ms Diamandi (and Mr Apps) only saw the defendant to take instructions on three occasions in the lead up to trial, namely, 27 July 2010, 18 February 2011 and 21 February 2011. There had been no conferences between Ms Diamandi and Mr Apps regarding trial preparation between the delivery of the brief and 18 February 2011.
Mr Niarchos emphasised that no signed statement had been obtained, nor had any formal proofing of the defendant occurred, prior to the morning of trial. No statements had been taken from potential witnesses to be called in the defendant’s case. No advice had been given or instructions sought by Mr Apps regarding potential evidence or witnesses. No advice had been given or instructions sought from the defendant in relation to the Notice to Admit Facts filed by the DPP.
No Rule 15 DCCR notice had been filed seeking to exclude evidence, although I accept that Mr Apps turned his mind to that issue, and determined that the issue could be dealt with informally. Indeed, Mr Apps had requested that half an hour be set aside on the morning of trial to determine issues relating to the exclusion of certain evidence.
Of particular concern to the defendant, and as submitted by Mr Niarchos, no investigation was undertaken regarding the defendant’s assertion that he and the DZ had been maintaining a sexual relationship in the lead up to 8 February 2010. There is evidence that Ms Diamandi had been told by the defendant’s brother that neighbours of the defendant living near the defendant’s house were willing to give evidence that the complainant had been attending the defendant’s home during the time the restraining order was in place. Mr Niarchos pointed to the fact that Ms Diamandi had formed the view that the relationship between the defendant and DZ leading up to 8 February 2010 was not relevant.
Advice on the Morning of Trial
Mr Niarchos made similar criticisms of the advice provided to the defendant on the day of trial on 22 February 2011. It is apparent that both Ms Diamandi and Mr Apps were of the opinion that the defendant faced significant difficulties with regard to certain aspects of the case against him, particularly the extent of the injuries sustained by DZ, the stab marks to the pillow, and the discovery by police of the knife and the petrol can at the house of the defendant’s sister.
When Ms Diamandi took instructions in the cells on 22 February 2011, in the absence of counsel, she told the defendant of her concerns regarding these issues. Although the defendant confirmed his instructions that DZ had consented to the sexual intercourse that occurred that night, Ms Diamandi advised him that the matters to which she had referred, in combination, would be difficult to explain.
Mr Niarchos was particularly critical of the advice provided by Ms Diamandi to the defendant as to the sentence which might be imposed depending on whether he pleaded guilty or was found guilty.
However, I note that when Mr Apps attended the cells on 22 February 2011 to speak to the defendant, Mr Apps made it clear that if the defendant did plead guilty he could expect to serve a long term of imprisonment.
Mr Niarchos characterised the advice that the defendant could expect to serve 4 to 7 years compared to 10 to 12 years as materially erroneous advice. He submitted that the advice that he could receive virtually half the term of imprisonment for pleading guilty was wrong and a clear inducement to obtain pleas of guilty.
Mr Niarchos submitted that no instructions were taken from the defendant as to the factual basis upon which he would be pleading guilty. Furthermore, no factual basis was agreed with the DPP.
Findings
Legal Advice
Where the evidence of the defendant differs from the evidence of Ms Diamandi and Mr Apps, I prefer the evidence of Ms Diamandi and Mr Apps.
The evidence of Mr Apps, which I accept, was that he was content with the instructions as taken by Ms Diamandi, and that he was ready to proceed to trial. The assertion that he was not ready for trial is rejected.
A specific criticism raised by Mr Niarchos, and one which seemed most important in the mind of the defendant, was whether or not he had maintained an ongoing sexual relationship with DZ in the period between the imposition of the DVO, and the night of the offending. The defendant’s brother had, in September 2011, informed Ms Diamandi that there were neighbours who would be willing to give evidence that DZ had attended the defendant’s house when the DVO was in place.
Ms Diamandi had taken the view that the nature of the relationship leading up to the events of 8 February 2010 was not particularly relevant. Mr Apps accepted that the issue ought to have been explored, and had he known there were possible witnesses he would have requested they be proofed, or further investigation undertaken.
It may well be that the defendant and DZ had ongoing contact after the DVO had been imposed. That is the one matter which the defendant has consistently maintained. Mr Apps conceded, quite properly, that that was a matter which, in hindsight, should have been further explored. However, as Mr Apps said, even were such a witness available, that would not be an answer to the evidence against the defendant as to the events of 8 and 9 February 2010.
In any event, on the hearing of this application the defendant did not produce a witness, or even a statement from a potential witness, who could confirm that there had been any such ongoing contact.
I reject the submission that the defendant pleaded guilty because of pressure placed upon him by his legal representatives, or because this matter was not ready to proceed to trial, or because of advice by his legal representatives as to his likely sentence.
The defendant was giving consideration to resolving the charges against him by the time of the conference on 18 February 2010. He pursued that on 21 February 2011 and 22 February 2011. He instigated discussions regarding entering pleas of guilty. He entered his pleas as a matter of free choice. While it may be that Ms Diamandi overstated the discount the defendant might receive should he plead guilty, further advice was given by Mr Apps that the defendant would receive a long sentence should he plead guilty.
The advice provided by Ms Diamandi, that upon a plea of guilty the defendant might expect a sentence of four to six or seven years, and upon a finding of guilty, a sentence of 12 years, suggested, as Mr Niarchos put to Ms Diamandi, a discount of some 50 per cent. That, in my view, had the potential to act as an incentive to plead guilty.
However, I find that the potential inducement did not operate on the defendant’s mind. As I have said, he raised the issue of pleading guilty. He provided instructions to plead guilty without waiting for a response from the DPP as to whether any of the charges might be withdrawn in consideration of a plea of guilty to some charges. He was made aware by Mr Apps that upon a plea of guilty he would be sentenced to a significant term of imprisonment, the length of which could not be guaranteed by his legal representatives, but would be a matter for the court.
In R v McCormack, Millsteed DCJ said:[28]
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 defendant 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.
[28] R v McCormack [2009] SADC 131 [63].
So it is in the present case. The declarations suggest a strong prosecution case. The injuries sustained by DZ, combined with the attempt to conceal the knife and the petrol can, and issues identified by Ms Diamandi as problematic for the defence case, were indeed problematic for the defence case.
The behaviour of the defendant following his departure from DZ’s house, together with his behaviour in having his sister approach DZ to withdraw the charges, eventually by offering monetary inducements to withdraw the charges, also lead me to 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”.
The defendant’s explanations for various events of the evening, provided by way of instructions to his legal representatives prior to his plea of guilty, appear to me to have been illogical and fanciful.
In any event, as Doyle CJ said in R v Pugh:[29]
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.
[29] R v Pugh (2005) 158 A Crim R 302 [52].
My conclusion in relation to the advice provided to the defendant was that such advice was appropriate, with the exception of Ms Diamandi’s assessment of the discount which might apply to a plea of guilty, and the that preparation of the matter for trial was adequate. To adopt the words of Millsteed DCJ in R v McCormack:[30]
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 [a sentencing discount], 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.
Was the Defendant Mentally Competent at the Time of the Offending?
[30] R v McCormack [2009] SADC 131 [69].

Mr Niarchos submitted that the expression “temporary disorder, abnormality or impairment of the mind” in s 269A CLCA is a reference to the effects on a healthy mind, caused by the ingestion of drugs or alcohol. Further, he submitted, a defence of insanity or mental incompetence under Part 8A may arise where an accused commits an offence produced by a state of self induced intoxication operating upon a pre existing mental illness so as to aggravate or exacerbate the effects of that mental illness producing a level of mental impairment. While that may be so, it is not an issue I need to decide. I find that even if the defendant had an adjustment disorder at the time of the offending, it was not such as to constitute a condition which, even in combination with the intoxicating effects of alcohol or drugs, offered him a defence under Part 8A.
Mr Niarchos submitted that the effects of intoxication due to alcohol or drugs may have at least arguably exacerbated the underlying mental illness, and together been operative as a mental impairment at the relevant time. In the alternative, he said that that was, at the very least, an issue which ought to have been explored through the Part 8A process, on the basis that the stark contrast between the defendant’s instructions and DZ’s description of the defendant’s appearance and behaviour raised an issue requiring expert psychiatric or psychological evaluation, even when the defendant had agreed to plead guilty.
I do not accept the defendant’s account as to the extent of his intoxication. Although DZ referred to the defendant as being red in the face and sweating, and giving some appearance of being under the influence of drugs, I do not accept that the defendant was as intoxicated as he sought to suggest after the pleas of guilty were entered. Such an account of increasing alcohol consumption, is inconsistent with his original instructions. His account of the extent to which he had consumed alcohol, and illicit drugs, became more exaggerated as subsequent examinations and assessments took place. It may be that the defendant was intoxicated by alcohol. I do not accept his evidence that he consumed illicit drugs. As I have said, his accounts of his level of intoxication, and the level of his mental functioning, appear to have developed throughout the process of this application.
The defendant agreed that he had never told his legal representatives, in particular Mr Apps or Ms Diamandi, that he was drunk, or that he had consumed cannabis or speed. He did not suggest that he had suffered paranoia, or hallucinatory phenomena.
Even were I to accept the defendant’s evidence as to his level of intoxication, given subsequent to his pleas of guilty, that evidence is unequivocal as to his voluntary consumption of all three intoxicants, and importantly, on his evidence, that he knew the substance being put in his drink was ‘speed’, prior to consuming it.
Given the defendant’s detailed instructions to his legal representatives in the time leading up to trial, including an account of the events of the evening in which he sought to explain away various aspects of the evidence against him, his behaviour on the night, the injuries to DZ, the existence of the knife, and of the petrol can and bucket, and the funnel, I do not accept that the defendant lacked a memory of the events of the evening.
In my view there was no evidence called by the defendant to suggest that there was any sufficient indication as to have alerted Ms Diamandi or Mr Apps to consider the need for a Part 8A inquiry.
I find, in any event, that even had a Part 8A inquiry been undertaken, no defence of mental incompetence would have been available to the defendant. On the basis of the expert evidence, I do not accept that the defendant lacked mental competence at the time of the offending.
The expert witnesses did not depart, in evidence or under cross-examination, to any significant degree, from the opinions expressed in their reports.
Counsel for the defendant relied on the opinion expressed by Dr White, psychologist, that the defendant suffered an adjustment disorder with mixed anxiety and depressed mood, and also a PTSD, prior to and in the period leading up to the time of the offending. That diagnosis of PTSD was based on psychometric testing. Such testing was not undertaken by either Mr Balfour or Dr Raeside.
Dr Raeside was prepared to accept that the defendant may have been suffering an adjustment disorder with mixed anxiety and depressed mood, although, it must be observed, that that diagnosis was based upon an assessment of the description of events, and on an assessment of the defendant after he had been arrested and incarcerated for the present offending. Dr Raeside considered that an adjustment disorder could be considered to be a mental impairment within the meaning of s 269C CLCA.
Mr Balfour, similarly, considered that the defendant was suffering from an adjustment disorder, characterised by depressive and anxious features.
Insofar as it is necessary to prefer any of the expert witnesses, having regard to his qualifications, expertise, and experience, I prefer the opinion of Dr Raeside. His opinion is in any event supported by Mr Balfour, and, subject to the qualifications referred to, largely conceded by Dr White, although Dr White maintained a diagnosis of PTSD. I do not accept that diagnosis.
I am not satisfied that the defendant suffered any hallucinatory phenomena prior to attending at DZ’s house. As I have said, the defendant did not mention them at any time to his legal representatives, and indeed did not mention them to the initial assessing experts, after the plea had been entered.
None of the three experts engaged by the defendant supported a finding of mental incompetence at the time of the offending. Dr White’s contention that, if the intoxication could be weighted in support of a mental incompetence defence, such a defence would be more likely than not supported, must be disregarded, given the provisions of s 268 CLCA.
A mental impairment defence is not available where, on the medical evidence, if the defendant was suffering a mental disorder at all it was either a “drug induced psychosis” or an “evolving schizophrenic disorder which may have been precipitated by drug abuse”.[31]
[31] Police v Hellyer (2002) 218 LSJS 223 [92]-[93].
For reasons already expressed, I do not consider that there was any sufficient material before the defendant’s legal representatives to warrant a Part 8A inquiry. In any event, on my assessment of the expert evidence, the defendant was not incapable of controlling his behaviour and understood the nature of his actions and the wrongfulness of his actions. No mental competence defence was available to him.
There is no basis upon which leave should be given to withdraw the pleas of guilty. I dismiss the application.