R v Pain - [2016] VSC 532

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IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

S CR 2015 0024

THE QUEEN

MAXWELL JOHN PAIN

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 AUGUST 2016
DATE OF RULING:	12 SEPTEMBER 2016
CASE MAY BE CITED AS:	THE QUEEN v PAIN
MEDIUM NEUTRAL CITATION:	[2016] VSC 532

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CRIMINAL PROCEDURE — Plea – Change of plea – Applicant seeking leave to withdraw plea of guilty to one count of murder – Impact of observation about sentencing discount made by trial Judge before empanelment – Applicant suffering from severe dyslexia – Condition immediately unknown to trial Judge and Counsel – Miscarriage of justice – Leave allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Randazzo SC	Vines Lawyers
For the Director of Public Prosecutions	Mr K T Armstrong	Office of Public Prosecutions

HIS HONOUR:

The Director of Public Prosecutions contends that on 10 June 2014 the applicant, Maxwell John Pain, murdered David Cameron Paris. The applicant had, consistently, accepted that he shot Mr Paris causing his death but he denied any murderous intent.

His trial was scheduled to commence before a judge of this court on 23 November 2015. When the applicant was arraigned on 24 November 2015, he pleaded guilty to that charge of murder.

The proceeding was duly adjourned for plea and sentence but before his plea could be heard, the applicant stated his desire to change his plea. The applicant’s grounds for seeking to change his plea were:

(a) The guilty plea was entered under duress, occasioned both by remarks made by the Judge on the first day of the trial as to the likely difference in sentence between a plea and verdict of guilty and also remarks made by his then counsel who he thought ‘agreed’ with the Judge;

(b) The plea was entered without the applicant having a proper understanding of the options he had; and

(c) The plea was not a true admission of guilt attributable to a genuine consciousness of guilt.

For the reasons that follow, I will grant the applicant leave to withdraw his plea of guilty to the murder charge and direct that the proceeding be listed for further directions for a trial.

This application originally commenced before T Forrest J who, for reasons that are not relevant, did not determine it. The parties agreed that I should consider the transcript of the evidence given before T Forrest J by Mr Cahill and Ms Todd as part of the evidence on the application. Each of the applicant and his counsel, Mr M P Cahill SC and Ms F Todd, swore an affidavit and each was cross-examined. In addition, the applicant filed and served a neuropsychological report dated 3 March 2016 prepared by Martin Jackson, who was cross-examined on his report.

In making the findings of fact that I will shortly express I have preferred, where necessary, the evidence of Mr Cahill, which is generally supported by the evidence of Ms Todd,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pain

Details

AGLC: R v Pain [2016] VSC 532
Case: [2016] VSC 532
Decision Date: 12 SEPTEMBER 2016

CaseChat Overview and Summary

The case of R v Pain involved the applicant seeking leave to withdraw a plea of guilty to one count of murder. The application was heard in a higher court, which was tasked with determining whether the applicant's plea could be withdrawn due to perceived procedural unfairness. The applicant argued that a comment made by the trial judge regarding a sentencing discount before the empanelment of the jury amounted to an observation that influenced the plea process. This was compounded by the fact that the applicant's severe dyslexia was unknown to both the trial judge and the applicant's counsel at the time, potentially impacting the fairness of the proceedings.

The court had to decide whether the applicant's plea could be withdrawn due to the impact of the trial judge's comment and the applicant's dyslexia on the plea process. The central legal issues were whether the trial judge's comment constituted an observation that influenced the plea and whether the applicant's dyslexia constituted a significant factor that affected the fairness of the proceedings. The court had to balance the principles of procedural fairness with the finality of pleas and the interests of justice.

The court found that the trial judge's comment did indeed constitute an observation that influenced the plea process, especially given the applicant's dyslexia, which was not known to the trial judge or counsel. The court concluded that this observation, combined with the applicant's dyslexia, created a significant risk of a miscarriage of justice. The court granted leave for the applicant to withdraw the plea of guilty. The court emphasised the importance of ensuring that all participants in the criminal justice system are aware of the accused's disabilities to prevent such injustices in the future.

The final orders included granting the applicant leave to withdraw the plea of guilty to the count of murder and directing that the matter proceed to trial. The court also made orders to ensure that the applicant's dyslexia was properly considered in future proceedings, including providing appropriate support and accommodations.

Orders