R v Rae (No 2) - [2005] NSWCCA 380

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Stephen John RAE (No 2) [2005] NSWCCA 380

FILE NUMBER(S):
2003/3191

HEARING DATE(S): 22 & 23 September 2005

JUDGMENT DATE: 08/11/2005

PARTIES:
Regina v Stephen John Rae

JUDGMENT OF: Giles JA Hislop J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 98/21/2124

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

COUNSEL:
Applicant in person
W G Roser - Crown

SOLICITORS:
Not applicable - Applicant
S Kavanagh (Solicitor for Public Prosecutions) - Crown

CATCHWORDS:
Plea of guilty - application to withdraw plea - application withdrawn - conviction and sentence - appeal against conviction and sentence - conviction appeal abandoned - notice of abandonment not filed - sentence appeal dismissed - applications to prosecute conviction appeal or bring fresh appeal and to reopen sentence appeal - not necessary to decide ability to prosecute conviction appeal or bring fresh appeal - assuming conviction appeal, miscarriage of justice in reliance on plea not shown - sentence appeal could not be reopened - if it could, no ground for reopening made out - applications dismissed. D

LEGISLATION CITED:

DECISION:
Applications dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2003/3191
DC 98/21/2124
GILES JA
HISLOP J
ROTHMAN J
Tuesday 8 November 2005

REGINA v Stephen John RAE (No 2)

Judgment

GILES JA: On 25 October 1999 the applicant was arraigned and pleaded guilty on a charge of causing grievous bodily harm with intent to murder (Crimes Act 1900, s 27). On 23 December 1999 he was convicted and, taking into account a further offence of occasioning actual bodily harm (Crimes Act, s 59) on a Form 1, was sentenced by Karpin DCJ to imprisonment for 19 years 8 months with a minimum term of 14 years 9 months.
On 12 January 2000 the applicant brought appeals against conviction and sentence. He later abandoned the conviction appeal. The sentence appeal was heard on 12 December 2001, and was dismissed (R v Rae [2001] NSWCCA 545).
By documents dated 21 October 2003 and 14 November 2003, supplemented by a document received in the Registry on 7 May 2004 stating “Additional grounds of appeal”, the applicant made what amounted to applications -
(a)for leave to withdraw the abandonment of the conviction appeal, alternatively an extension of time to file a fresh conviction appeal, and for an order quashing the conviction; and
(b)for leave to reopen the sentence appeal and for an order that the appeal against the severity of the sentence be allowed.
The applicant was unrepresented in filing these documents and in the conduct of the applications.
The offences
The applicant had been in a relationship with Ms Gabrielle Mazzali for about a year. The relationship had fluctuated, and Ms Mazzali terminated it. The applicant did not accept the termination.
The following is taken from the judge’s remarks on sentence -
“On the evening of 3 February 1998 the prisoner telephoned Ms Mazzali. She told him she was going out. He said, 'Who is this guy you are going out with?' She told him she was attending a Landmark meeting with a woman friend. Landmark apparently being a personal development forum to which Ms Mazzali belonged. When she and her friend arrived at the Landmark meeting the prisoner was there. During the evening Ms Mazzali and her friend went out to eat. They were followed by the prisoner who approached her friend saying that he wanted to talk to Ms Mazzali. She told him that Ms Mazzali did not want to talk to him. The latter told him she would speak to him another night. He did not appear to either woman to be affected by alcohol.
About 11.30pm Ms Mazzali's friend drove her home. Shortly after she arrived home she received a series of phone calls but no one answered until finally the prisoner identified himself saying he just wanted to talk. Ms Mazzali said she did not want to talk to him but that they would talk another night. She locked the front door and went to bed.
A short time later she heard a loud noise and immediately got up. She saw the prisoner in her bedroom holding a plastic container from which he threw liquid over her. Ms Mazzali realised instantly that it was flammable liquid. It was petrol. She tried to run past him to get out of the flat. He continued to pour the petrol over her. She became saturated in petrol. She managed to escape from the flat and ran out screaming for help.
Stephen Swain, who lived downstairs, came up the stairs and took hold of the prisoner. Ms Mazzali could see the prisoner attempting to get a cigarette lighter out of his jeans pocket. She yelled out to Mr Swain to hold onto the prisoner because he had the lighter. Unfortunately the prisoner managed to escape Mr Swain's grasp and removed the lighter from his pocket. He ignited the lighter with which he then set Ms Mazzali on fire. She was immediately engulfed in flames. Both the prisoner and Mr Swain were also set alight by the explosion. Each of them managed to extinguish the flames.
Ms Mazzali was not so fortunate. She was completely engulfed in a fireball. She was in agony and believed she was about to die. She threw herself down the stairs in a vain attempt to put out the flames. She felt she was melting. She called out for an ambulance and police. Mr Swain ran down and began to pour water over her. He was joined by other residents. The prisoner went to Ms Mazzali's flat which shortly after was seen to be ablaze. Whilst the victim was being doused with water, firstly in an attempt to put out the flames and then in an attempt to relieve her agony, the prisoner walked downstairs, stepped over the screaming woman and left the building. Police were soon on the scene, followed by ambulance officers. Ms Mazzali was transported to Concord Hospital. Fire services attended and put out the fire.
Approximately 45 minutes later the prisoner attended Ashfield police station where he spoke to Sergeant Burton, to whom it was obvious the prisoner had suffered burn injuries to his arms, legs and face. The prisoner said to Sergeant Burton, 'I have done a very bad crime. I've had a big argument with my girlfriend. I felt suicidal. I wanted to end it.' Sergeant Burton said, 'Did you pour fuel on yourself?' The prisoner said, 'Yes, and on my girlfriend'. Sergeant Burton said, 'Where did you get it?'. The prisoner said, 'I just bought it.' The prisoner had in fact purchased a two litre plastic container of milk which he emptied out. He went to a service station and filled the container with petrol before going to Ms Mazzali's premises where he used considerable force to smash in her front door to gain access to her flat."
The applicant appeared to take issue with stepping over Ms Mazzali, but it was well founded in the materials before the judge. The injuries suffered by Ms Mazzali were horrific, but for present purposes there is no necessity to describe them.
The offence of causing grievous bodily harm with intent to murder lay in the applicant’s conduct involving Ms Mazzali. The offence of occasioning actual bodily harm lay in his conduct involving Mr Swain. Although the applicant appears now to have a different view, the only defence realistically available for consideration was that the applicant did not have the requisite intent to murder.
The applications
By the document dated 21 October 2003 the applicant applied to “(1) withdraw notice of abandonment on his conviction and (2) to reopen his appeal on sentence on the grounds that the applicant has been denied procedural fairness during the appeal”. By the document dated 14 November 2003 he applied for “special leave to appeal”, stating two grounds of appeal. In the document received on 7 May 2004 he stated fifteen additional grounds of appeal. I will return to the grounds of appeal.
The applicant supported his applications with a mass of material. Some affidavits sworn by the applicant provided a mixture of facts and submissions, and through the affidavits and otherwise the applicant put into evidence numerous documents including statements taken by the police, articles in the press, letters from himself to his parents and others, letters from his mother, reports of a forensic pathologist, a psychologist and psychiatrists, and correspondence with and affidavits of some of his solicitors and counsel in 1998- 2001. The applicant called oral evidence from his parents. A deal of the material was irrelevant or only peripherally relevant, but the Crown took limited objection to its admission.
The Crown relied on a solicitor’s affidavit to put documents before the Court, some duplicating documents in the applicant’s material. It called the solicitor and counsel whose affidavits were in the applicant’s material, who identified their affidavits and were cross-examined. It called other of the applicant’s solicitors and counsel in 1998-2001, in some cases obtaining evidence in chief and in other cases for cross-examination by the applicant. Counsel representing the applicant in connection with the plea of guilty and in the sentence appeal all gave evidence.
The Crown did not cross-examine the applicant. That not withstanding, the letters and other documents of the applicant’s authorship in the materials provided insight into the applicant’s perceptions over time, including the evolution of a firm present belief that he has consistently been treated unfairly and has suffered from incompetence or worse of his legal representatives and others in the criminal justice system. I do not think that the applicant’s evidence, through his affidavits or documents of his authorship, of what was said and done can be regarded as reliable unless it is verified by other evidence; nor his evidence of his state of mind or thought processes at times in the past. The overlay of his evolving belief is too great.
The basis assigned for reopening the appeal against sentence in the document of 21 October 2003 was denial of procedural fairness in the appeal. Grounds 12 and 13 in the document received on 7 May 2004 were also directed to the sentencing proceedings.
The grounds of appeal in the document dated 14 November 2003 were first, “The conviction was unsafe, unjust and unreasonable, and cannot be supported having regard to the evidence”, and secondly, “That the judgment of the court of trial was unjust and should be set aside on the ground of the wrong decision on questions of law and/or miscarriage of justice said to arise”. They were inappropriate to an appeal against conviction following a plea of guilty, and the additional grounds of appeal appear to have been intended to replace them or at least provide their content.
The additional grounds of appeal in the document received on 7 May 2004 were disparate, and will be better understood after there has been some reference to the facts. For the present I do no more than set them out.
Ground 1: “The failure or inability of initial representatives to include relevant information to experts and obtain evidence due to funding difficulties.”
Ground 2: “Failure of the Crown to ensure that the case was presented with fairness to the accused.”
Ground 3: “Failure to disclose evidence relation to preparation of case before 23rd August 1999 and failure to disclose scientific evidence alongside Dr Milton’s report when tendering it, tendered in the notice of motion, failure to disclose that the report was improperly obtained.”
Ground 4: “The advice of 13th Dec that the motion will fail is incorrect.”
Ground 5: “Improper pressure leading into the plea.”
Ground 6: “That the advice of 13th Dec to adhere to the plea was incorrect.”
Ground 7: “Failure to adhere to the circumstance of the plea.”
Ground 8: “Incompetence of representative.”
Ground 9: “Refusal to grant adjournments on 22nd Oct and 25 Oct and 13th Dec resulted in unfair trial and sentencing. That the advice of her honour, Justice Karpin advising the applicant not to challenge the Crown brief and the matter was ready to proceed was erroneous and overpowering.”
Ground 10: “Inherent bias in Dr Milton’s report.”
Ground 11: “Failure to object to Dr Milton’s report.”
Ground 12: “Insufficient preparation time for sentencing proceedings.”
Ground 13: “That Her Honour failed to hear sworn evidence from experts when determining penalty.”
Ground 14: [Not stated in terms, but that the Court should apply s 7 of the Criminal Appeal Act 1912.]
Ground 15: “That in sum total, the collective appeal points raised, whether individually they have failed or not should be considered as one appeal point and amount to a miscarriage of justice in and of themselves.”
Dealing with the applications concerning conviction
Although the conviction appeal was abandoned, an order dismissing it was not made and a notice of abandonment was not filed whereby there was a deemed dismissal pursuant to r 27 of the Criminal Appeal Rules.
The applicant and the Crown gave considerable attention to the extent to which, after the abandonment of a conviction appeal, the Court would entertain further challenge to the conviction. The applicant came to contend that, in the absence of an order of dismissal or a deemed dismissal, the conviction appeal could be revived to its full extent. He also contended that, even if it could not, he could obtain leave to withdraw his abandonment or an extension of time to bring a fresh appeal and should be permitted to revive the appeal in that manner, in substance because a miscarriage of justice would otherwise go unremedied. The Crown provided extensive written submissions inviting this Court to reconsider the effect of a deemed dismissal as explained in R v Bell (1987) 8 NSWLR 311, R v Cartwright (1989) 17 NSWLR 243 and other cases since, but its submissions attempting to bring the present case within rule 27 were perfunctory. The Crown’s position if there was not a deemed dismissal was that there was no merit in the applications.
This is not the case to resolve the question of the status of an appeal which has been abandoned, but which has not been dismissed or the subject of a notice of abandonment; or the questions of the need for leave to withdraw the abandonment or for commencement of a fresh appeal or the extent to which the Court will entertain further challenge after the abandonment. The applicant’s immersion in legal research and in his case as he perceived it did not produce helpful assistance to the Court on these matters – that is not said critically – and the Crown’s focus on rule 27 rather limited the assistance of its submissions. In my opinion, assuming without deciding that the abandoned appeal is before the Court for determination, it should not be upheld, and it is sufficient to go directly to that matter. I therefore deal in these reasons with the substance of the conviction appeal, putting aside important procedural and discretionary matters which in other circumstances could call for consideration.
The nature of the conviction appeal
The appeal was against conviction on a plea of guilty, not against conviction on the verdict of a jury or of a judge sitting without a jury. Much in the applicant’s case in the applications was misdirected to an appeal of the latter kind, and appeared to invite this Court to conclude that he did not have the intent to murder. That the appeal was against conviction on a plea of guilty, however, governs its consideration in this Court.
The intent to murder was admitted by the plea of guilty. While the ultimate question is in the terms of s 6 of the Criminal Appeal Act, whether there was a miscarriage of justice (see R v Murphy (1965) VR 187; R v Chiron (1980) 1 NSWLR 218; R v Davies (1993) 19 MVR 481; R v Khan [2002] NSWCCA 521; R v SL [2004] NSWCCA 397), any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea.
It is important to appreciate that the question in cases such as the present is not guilt or innocence as such, but the integrity of the plea of guilty. As was said by Howie J in Wong v Director of Public Prosecutions [2005] NSWSC 129 at [33] -
“33 A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant’s own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea “is not in truth guilty of the offence”: Meissner [Meissner v The Queen 1994) 184 CLR 132] at 141. Justice Dawson stated the following at 157 (footnotes omitted):
‘It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: 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. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.’”
The circumstances in which a miscarriage of justice may be found have been variously expressed, but an exhaustive recitation of instances is not possible. I venture to repeat what I said, with the agreement of Buddin J and Smart AJ, in R v SL at [50]-[51] -
“50 In R v Hura it was said that a number of circumstances had been identified when a conviction may be set aside notwithstanding a plea of guilty. Statements of the circumstances included that the appellant did not appreciate the nature of the charge to which the plea was entered (R vFerrer-Esis (1991) 55 A Crim R 231 at 233); that the plea was not a free and voluntary confession (R vChiron at 220); that the plea was not attributable to a genuine consciousness of guilt (R vMurphy at 191); that the plea was induced by threats or other impropriety where the appellant would not otherwise have pleaded guilty, so that the plea was not really attributable to a genuine consciousness of guilt (R v Cincotta, CCA, 1 November 1995); that the plea was equivocal and made in circumstances suggesting that it was not a true admission of guilt (R v Maxwell (1995) 184 CLR 501 at 511); and that the appellant was not in possession of all the facts and did not entertain a genuine consciousness of guilt (R vDavies at 485). These are instances of where a miscarriage of justice may be found, not exhaustive statements of the test for miscarriage of justice.
51 The plea itself is a cogent admission of the ingredients of the charge (R v O’Neill (1979) 2 NSWLR 582; R v Sagiv (1986) A Crim R 73; R v Davies), and as was said by Brennan, Toohey and McHugh JJ in Meissner v The Queen (1994) 184 CLR 132 at 141 -
‘A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence’.”
An accused person may plead guilty, and be held to his plea, although asserting his innocence. That is made clear in the passages in Meissner v The Queen (1995) 184 CLR 132 earlier noted. If the accused person is advised to plead guilty, despite his assertion of innocence, because of a perceived advantage, and he accepts the advice, the focus will be on whether he exercised a free choice in what he believed to be his interests at the time. As was said by Howie J in Wong v Director of Public Prosecutions at [37] -
“37 But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.”

Underlying this is that our legal system is adversarial, in criminal litigation as well as civil litigation. With a qualification in the event of flagrant incompetence (R v Birks (1990) 19 NSWLR 677), as a general rule an accused person is bound by the way his legal representatives have conducted the litigation, as to admission of evidence, cross-examination, jury directions and wider tactical decisions (see for example R v Suresh (1998) 153 ALR 145; TKWJ v The Queen (2002) 212 CLR 124). Rarely will it be held that a miscarriage of justice lies in the accused’s forensic choice, “consciously elected with the prospect of perceived advantage, but the peril of risks to the accused” (R v Suresh at [55] per Kirby J). So also a forensic choice to plead guilty, considered by the accused to be in his best interests, will not give rise to a miscarriage of justice unless it is established that it was entered in circumstances of the kind instanced above.
It is not irrelevant to give attention to whether the applicant had the intent to murder. But that is not because it is for this Court to conclude whether or not he had it. Rather it is because, even if circumstances such as those spoken of in R v Hura are found to have been present, an appeal against conviction on a plea of guilty will only be upheld if the material before the appellate court shows there is a real question about the guilt of the accused, see R v Toro-Martinez (2000) 114 A Crim R 533 at 539. In R v Khan, in connection with referring to the reference by Wood CJ at CL in R v Wilkes (2001) NSWCCA 97 at [20] to whether the material before the appellate court showed that there was a real question about the appellant’s guilt, it was said -
“27 The statement of the third consideration by Wood CJ at CL reflects that, even if it be found that the plea was not attributable to a consciousness of guilt, nonetheless leave to withdraw the plea of guilty will be refused if there is not a real question about guilt. Thus in R v Davies (CCA, 16 December 1993, unreported) it was said that leave to withdraw a plea of guilty will be refused if the case against the accused is overwhelming, and in R v Hura (2001) 121 A Crim R 472 it was said that if the person entering the plea of guilty did not entertain a genuine consciousness of guilt then the plea of guilty should be set aside if, but only if, the appellant shows that there is a real question to be tried. The statement of the third consideration followed citation of the passage from R v Hura so stating, and did not endorse a separate ground for withdrawal of a plea of guilty.”
In the manner the applications were conducted, it is necessary to go in a little detail to the circumstances in which the applicant pleaded guilty, and to attempt to winnow from the mass of material put before the Court and the applicant’s various submissions his bases for a miscarriage of justice in the circumstances in which he came to enter his plea. There were gaps, discrepancies and obscurities in the material. The submissions were often difficult to understand.
Events to early September 1999
The applicant spent some time in hospital. He was charged in early March 1998, and became represented by Ms Joan Baptie, solicitor. He was advised to agree to a paper committal, and did so. On 16 June 1998 he was committed for trial on charges of attempted murder (Ms Mazzali), break and enter with intent to commit a felony (breaking into the flat), assault occasioning actual bodily harm (Mr Swain) and maliciously destroying or damaging property by fire (setting the flat alight).
At some point the applicant was granted legal aid. After some changes in representation, he became represented by Ford Gaitanis, solicitors, who briefed Mr Clive Steirn QC. During this representation it became private rather than on legal aid.
On 3 August 1998 the applicant was arraigned on the charges. Mr Steirn advised him to plead guilty, but he did not want to plead guilty to the first of the charges. In November 1998 the trial was fixed for 23 August 1999, the rather late date being fixed to meet Mr Steirn’s availability.
In March 1999 the applicant parted from Ford Gaitanis and asked Ms Baptie again to represent him. A legal aid grant was assigned to Ms Baptie in May 1999.
Although there was evidence suggesting that the change in representation was due to funding difficulties, the applicant referred in a letter to Ford Gaitanis dated 26 March 1999 to “our differing opinions on the strategy of the case”; the letter included -
“Whilst I fully understand your position and have given serious consideration to what you and Mr Steirn have said, I feel we have yet to fully explore possibilities for a defence, in particular that of Mental illness. Until such times as we have had a psychiatric evaluation of my statement and the brief it is, I feel, premature to embark upon any kind of plea or deal until this is fully considered.
I strongly believe that at the time of my incident that I did not have the mental capacity to make rational decisions. My view is that at the time, I was suicidal and this tragedy followed rather than that of the Crown position of a planned pre-meditated act. As with all suicides, there is some degree of pre-meditation prior to actually killing oneself. Such as writing letters to family buying rope, etc. Equally so, that does not necessarily prove the person was rational as, if a person prepares to kill oneself and then commits the act, most reasonable people would not believe that to be the act of a rational person”
The applicant’s letter to Ms Baptie dated 7 April 1999 referred to the need for assessment by a psychiatrist, and included -
“What I am really trying to do is not argue that I wasn’t there, or didn’t cause the injuries, but that at no time was there any intention to kill, either prior [to] or during the incident.”
Ms Baptie briefed Mr Andrew Martin. Mr Martin advised that expert evidence should be obtained about whether the extent of Ms Mazzali’s injuries – full depth burns over 80 per cent or more of her body – was due to the efforts of those seeking to douse the flames with water, rather than the applicant’s dispersion of petrol, and as to obtaining psychiatric evidence. There was difficulty in obtaining legal aid funding for experts’ reports, and difficulty with the adequacy of the prosecution brief and with clarification of the brief and the proposed indictment by discussion with an appointed Crown Prosecutor. An adjournment of the trial to 23 September 1999 was granted.
Funding was obtained, and arrangements were made for reports from Dr R Byron Collins, consultant forensic pathologist, Dr Enrico Parmegiani, consultant psychiatrist, and Ms Anita Duffy, psychologist. Reports were received dated on various dates in August 1999.
The report of Dr Collins was summarised by Mr Martin as indicating that the first aid activities were appropriate and Ms Mazzali’s injuries were a direct result of the applicant’s actions. The report of Dr Parmegiani did not support a defence of mental illness or suicidal intent, but rather concluded that the applicant was “able to understand the nature of his actions and their possible consequences, and was therefore able to form intent with respect to his actions”, and that “his account of his actions following breaking into Ms Mazzali’s apartment does not suggest that he was actually trying to commit suicide at that time”. Ms Duffy reported that, from the applicant’s descriptions of his emotional state around the time of the offence -
“ … he appears to have been experiencing a profound depressive phase, with strong suicidal thoughts. He had little memories of the night initially, but these have returned, stimulated by statements of others and his discussions with police, etc. There is some evidence to conclude that he may have been highly disturbed and possibly experiencing a transient psychotic episode. His mental state was also affected by heavy drinking, and food and sleep deprivation. These factors would certainly have served to colour his judgement [sic].”
Mr Martin regarded the experts’ reports as unhelpful. Ms Baptie wrote to the Legal Aid Commission saying that Dr Parmegiani’s report would not be used.
A better prosecution brief and a proposed indictment were obtained. Mr Martin perceived, and confirmed, that the Crown intended to present a case based on murder/suicide rather than murder simpliciter. The evidence suggested that, in response to the applicant’s stance that it was attempted suicide without intent to murder, the Crown case was expanded to cover the applicant’s prior conduct towards Ms Mazzali, sometimes referred to in the material in the applications as evidence of stalking.
Mr Martin (and Ms Baptie) thought that a further psychiatric report addressing the “slightly more complex question” involved was desirable. On 2 September 1999 an adjournment of the trial until 25 October 1999 was obtained. Ms Baptie decided that Dr Bruce Westmore, forensic psychiatrist, should be asked to provide a report. Legal aid funding was approved, but Dr Westmore could not interview the applicant immediately; an arrangement was made for 18 October 1999.
There were discussions between Mr Martin and the Crown Prosecutor. The Crown would not accept a plea to a lesser charge than the attempted murder, but was willing to accept a plea to that charge with the assault on Mr Swain on a Form 1 and the arson charge being dropped.
The report of Dr Milton
The report and the circumstances in which it came about were prominent in the applicant’s submissions in the applications.
When the matter was adjourned on 2 September 1999 the Crown Prosecutor said to the judge, in relation to the applicant calling psychiatric evidence, that “the Crown hasn’t had him examined and they’ll certainly be seeking to do that but it will certainly be done much quicker than 18 October”. In discussion between the Crown Prosecutor and Mr Martin outside court, the Crown’s intention to have the applicant examined was repeated. Mr Martin understood that the Crown would “seek a report from its own specialist”.
The Crown made arrangements for Dr Rod Milton, psychiatrist, to interview the applicant, and he did so on 28 September 1999. The applicant knew that Dr Milton was present to examine him on behalf of the Crown. The evidence was that Dr Milton told the applicant that his legal representatives had (sometimes, must have) consented. The applicant’s evidence included that he was unsure, but submitted to the examination upon being told that his solicitors had consented. In fact they had not. The Crown had tried to contact the solicitors and Mr Martin, but its telephone calls had not been returned; in error, Dr Milton had been allowed to continue.
Dr Milton conducted an interview, and produced a lengthy report dated 12 October 1999. He considered that the applicant had not been mentally ill or acting without volition; he recorded that the applicant said he was suicidal, but expressed the view that his behaviour suggested that his primary aim was to harm or kill Ms Mazzali and that his burns had been accidental.
Ms Baptie protested to the Crown, which explained that it had tried to contact her and Mr Martin. Beyond Dr Milton’s professional opinion, Mr Martin considered that what the applicant told Dr Milton was “a version of events which seriously imperils any possible remaining defence”. According to Mr Martin, he remonstrated with the Crown Prosecutor, who told him that the report would not be used, but whether that was only in a trial was unclear.
A copy of the report was provided to Ms Baptie on 14 October 1999. When it came to sentencing, Dr Milton’s report was amongst the materials tendered; the applicant’s then legal representatives did not object to its use. Nor does it seem that the applicant, who was plainly alive to the dissension over the obtaining of the report, instructed that objection be taken to its use.
Ms Baptie and Mr Martin cease to represent the applicant
On 13 October 1999 Ms Baptie and Mr Martin advised the applicant of the Crown’s willingness to accept a plea to attempted murder, with the assault on Mr Swain on a Form 1. It seems that the Crown had indicated that, in that event, they would not rely on the stalking evidence. They told the applicant that his cooperation with Dr Milton and his communication with Ms Duffy had prejudiced any defence, that his early confession and the circumstances of the ensuing delay meant that on a plea of guilty he would be entitled to a discount on sentence, and that it was in his best interests to enter a plea. The advice so far as it rested on cooperation with Dr Milton must have been preliminary, since the copy of the report was not provided to Ms Baptie until the following day. The communication with Ms Duffy was a letter or letters sent to her by the applicant in which he asked her to change things in her report in respects which could have made it more favourable – for example, changing her references to stalking to importuning.
According to Mr Martin -
“In short we advised him to accept the Crown’s offer and enter a plea, this being in his best interests and a defended hearing being potentially a guarantee that he will receive a sentence of the order of a 16 to 18 year minimum term with an additional term of 5 to 6 years – the prospects otherwise being very much less (though no term was mentioned).
We also advised him that our feelings were that we were so strongly convinced this was the only sensible course he could adopt in his best interests that if the advice were not accepted we would seek to withdraw.”
The material included a letter in which Mr Martin wrote that the applicant considered that he was not guilty “on grounds, as best I can describe them, of some form of provocation” which he said the applicant described as a “defence of intent”. The applicant was advised that “provocation was not a defence to such charges”.
The applicant asked for time to consider the matter. After a day or so, he communicated that he declined to plead guilty. He said in his evidence that he did not agree to plead because he was “still waiting for Dr Westmore to come and do his report”. At some point the applicant had been advised that he could seek a permanent stay of proceedings on the ground he had been misled into participating into Dr Milton’s examination, I infer when he was seen on 13 October 1999. It seems that he instructed that an application be made for a permanent stay. Ms Baptie and Mr Martin agreed to continue representing the applicant until Dr Westmore’s report had been received.
The matter was listed for mention at Parramatta Court on 21 October 1999, to confirm the trial date. Ms Mazzali had arrived or was to arrive from England for the trial. The effects of her burns made summer conditions particularly stressful to her. These were constraints on putting back the trial date.
Mr Martin saw the applicant in the cells. Ms Baptie could not be present. Dr Westmore had examined the applicant on 20 October 1999. Mr Martin had telephoned Dr Westmore and spoken to him about the report. According to Mr Martin, Dr Westmore “said, in essence whilst it would be sympathetic it would not be very supportive”.
Before Mr Martin saw the applicant he saw the applicant’s mother. The applicant’s mother had spoken to Mr George Hovan of Hovan & Co about representing the applicant in place of Ms Baptie, and Mr Hovan had said to contact him after the proceedings on 21 October 1999. According to Mrs Rae, she said that she asked Mr Martin to tell the applicant that she had “spoken to someone else and it would be okay”. According to Mr Martin, however, the applicant’s mother told him that his instructions had been withdrawn and Mr Hovan was to take over, and Mr Martin replied that he would have to “get that from the applicant”.
Mr Martin had decided, on reflection, that there was no point in an application for a permanent stay. He said that he advised the applicant against attempting to obtain a stay, because “all it means is we can probably insist the doctor not be called, and they agree with that”. (It may be also that there was an implied consent in what had been said in and outside court on 2 September 1999.) Mr Martin told the applicant that he needed “instructions consistent with a defence to the charge”. He told the applicant that he did not think Dr Westmore’s report would provide a defence “given Duffy, Parmegiani and Milton”, and that the applicant was at a risk described in a note made at the time of “18 + 6 as opp to 10 + 3½”. According to Mr Martin, he said that the applicant was not acting in his own best interests and that he (Mr Martin) “intend[ed] to withdraw”, and the applicant’s response was that his mother had approached other solicitors who were prepared to act. Mr Martin told the applicant that he would cooperate fully with the new solicitors.
The matter was mentioned in court. Mr Martin informed the judge that the applicant had engaged other solicitors, Hovan & Co, and sought and was granted leave to withdraw. Although it appears that Mr Martin thought that Hovan & Co had been retained, it may be that they had not been formally retained at that time. The applicant himself spoke, asking for a two week adjournment to instruct his new lawyers but also, seeming to read from a letter he had written addressed to the judge, saying that he had “always made known that I was willing to accept [Ms Mazzali’s] evidence” and that it was not necessary for her to be present at the trial. The matter was stood over to the next day, the judge saying that he needed to be persuaded that a lawyer coming into the case could not adequately defend the applicant on 25 October 1999.
The applicant appeared concerned in the applications to establish that Mr Martin withdrew his representation and the applicant did not withdraw his instructions. There were discrepancies in the evidence concerning the change in representation. For present purposes I do not think it matters, nor does it matter that Mr Martin may have been incorrect in telling the judge that Hovan & Co had been engaged. Whether they jumped or they were pushed, Ms Baptie and Mr Martin ceased to represent the applicant. There was dissension such that the applicant, in my opinion, was not content to continue with their representation, and would have given effect to his mother’s inquiry of Mr Hovan even if Mr Martin had not indicated an intention to withdraw.
Hovan & Co’s retainer
On 22 October 1999 a legal aid reassignment to Hovan & Co was authorised, to take effect from 2.30 pm that day and with briefing of Mr Phillip Ramos. The grant did not extend to an application to vacate the trial date, but permitted an application to adjourn the trial if counsel considered it appropriate although it made plain that a further legal aid reassignment would not be viewed favourably.
Mr George Anastasi of Hovan & Co appeared before the judge on 22 October 1999. He applied for what was first called a vacation of the trial date, then an adjournment “at least for a few weeks”. The Crown opposed the application. The judge foreshadowed that the trial should proceed later in the following week, or at a date which the judge before whom the matter came on 25 October 1999 considered an early date “consistent with the nature and new lawyers to take over its preparation”. Thus the trial date of 25 October 1999 remained, but was subject to consideration of an appropriate adjournment on that day.
22 October 1999 was a Friday; the trial date was the following Monday. Also prominent in the applicant’s submissions in the applications were first, that Hovan & Co did not see the applicant over the weekend; secondly, that Hovan & Co was paid by the applicant’s mother for their services on a representation that the grant of legal aid did not take effect until the afternoon of 25 October 1999; and thirdly, that Hovan & Co did not tell him that the legal aid grant did not authorise an application to vacate the trial date.
The plea of guilty

Mr Ramos was briefed. He spent the weekend on the matter. Mr Ramos told the judge on 25 October 1999 that he had not yet seen the applicant. He asked for an adjournment of a couple of days to prepare the matter. The Crown Prosecutor said that it was “foreshadowed that we wouldn’t start today”. The judge left the matter in the list so that Mr Ramos could see the applicant.
Dr Westmore’s report dated 21 October 1995 had been received. He opined that it was likely that the applicant was “suffering some type of depressive reaction around that time”, but that he did not have a defence of mental illness. He said -
“He does indicate that he did not intend to kill Gabrielle although psychiatry cannot really give you an opinion about what his intentions were. In cases such as this there is often considerable ambivalence and thoughts of self harm or homicide are often closely related and appear to be on occasions, interchangeable.”
Mr Ramos and his instructing solicitor, Mr Ren Zhou, saw the applicant in the cells. Mr Ramos’ affidavit included -
“12.In the cells, when consulting with Mr Rae, he appeared distressed and anxious. He asked if I could make an adjournment application. From memory, I told him that I would try but there was no possibility that the matter would be adjourned as it had been specially fixed.
13. Mr Rae said to me in words to the following effect:
‘I have not slept for a number of days and the pressure of the criminal justice system has had an adverse affect on me mentally and emotionally. Why was my adjournment application refused, and why have you come into the matter virtually on the day of the hearing.’
I recall saying words to the effect to Mr Rae:
‘In my opinion, two days preparation in such a serious matter without the benefit of conferences with relevant witnesses is going to be potentially perilous to your defence if the matter proceeds to trial. However, Judge Karpin is adamant that the trial should proceed as it is a special fixture and the alleged victim has flown out from the United Kingdom to give evidence.’
14.After some debate, I explained to Mr Rae that notwithstanding the valid concerns that he had raised, objectively, in my opinion, based on the anticipated evidence to be called at the trial by the Crown, he should plead guilty because of the following cogent reasons:
(i)The Crown case against him was very strong.
(ii)There was evidence of pre-meditation, viz., Mr Rae went to a service station and filled a container with petrol before going to the victim’s premises where he used considerable force to smash in her front door to gain access to the victim’s flat.
(iii)The medical evidence to be called by the defence was not capable of providing a defence at law. The report by the defence expert Drs Parmegiani and Westmore indicated there was no mental condition indicating a lack of requisite intent and although the psychological reports were somewhat sympathetic, they could was [sic] hardly be regarded as strongly favourable.
(iv)The psychological report by Dr Duffy, Barrier, Robilliard psychologists of 11 August 1999 was also not supportive of any abnormal psychiatric condition which would exculpate Mr Rae of his actions.
(v)The Crown’s medical expert, Dr Milton, was likely to be persuasive to the Court and devastating to Mr Rae’s case. (In my opinion, Mr Rae’s report of what he told Dr Milton was a version which seriously imperilled any possible remaining defence.)
(vi)Dr Milton opined that ‘There was no indication that he (Mr Rae) was mentally ill or acting without volition at the time of committing the offence’ … and … ‘I do not believe any mental illness defenses are available to him’.
(vii)There was also evidence that whilst the victim in the matter was being doused with water, firstly in an attempt to put out the flames and then in an attempt to relieve her agony, Mr Rae was seen to walk down the stairs, stepped over the screaming victim and left the building.
(viii)Shortly thereafter the events described in vii above, Mr Rae made a statement to police at Ashfield saying -
‘I’ve done a very bad crime, I had a big argument with my girlfriend, I felt suicidal, I wanted to end it’ …
(ix)In my opinion, this statement made to police in viii above shortly after the occurrence of the offence could be construed as an admission of guilty to an offence under s 27 of the Crimes Act.
(x)Mr Rae would receive some discount on sentence for a late plea of guilty (utilitarian value).
(xi)On the other hand, if Mr Rae contested the charges unsuccessfully, and compelled the victim to give evidence, the judge would in all likelihood be sympathetic to the victim resulting in a considerable greater penalty on sentence after a not guilty plea.
15.After discussing the matters in paragraph 14 above at some length with Mr Rae, I obtained written instructions from Mr Rae to enter a plea of guilty to the charge of attempted murder.
16.I myself wrote out the document and was careful to explain the essential elements of the offence pursuant to s 27 Crimes Act (NSW) 1900 to Mr Rae. That is to say, I explained the elements of the offence Mr Rae was charged with in both legal and layman’s terms. Mr Rae appeared to be lucid (and stressed) and he appeared to read and understand the contents of the document. He then affixed his signature to the document in the presence of myself and Mr Zhou, who witnessed the signature.”
In his oral evidence Mr Ramos said, in answer to a question from the applicant, that on the medical evidence the applicant did not have a defence; he said -
“A. You were in the cells and the solicitor was present and the circumstances were dire. As far as you were concerned, in the absence of a medical defence, to pursue a trial or unsuccessfully defend a charge would have rendered you with a far greater penalty, in my view, and for that reason I gave the advice.”
The signed instructions read -
“I Stephen John Rae, have made a decision to plead guilty to the charge of did cause grevious [sic] bodily harm, to Gabrielle Mazalli, with intent to murder, my barrister has explained to me, the essential elements of this offence being section 27 of the Crimes Act (NSW) 1900. I understand that by pleading guilty to the offence, I accept that I admit the essential element of the offence, that is, intent to murder.
Signed Witness
Stephen J Rae Zhou
25/10/99”
The applicant’s evidence through the material included that he was seen by Mr Ramos; he asked for an adjournment; Mr Ramos returned to court and then came back to the cells and said he could not get an adjournment; and “[a]fter this I agreed to plead guilty as I felt unable to go to trial with the matter so unprepared and there was no option of an adjournment”. At another point in the material he wrote that, after going back to court to get an adjournment, Mr Ramos said that he could not and they were “being forced on with what we have got”, whereupon he felt he was “under pressure to accept a plea as I was not in a mental state to do anything else at the time”. At another point again he asserted, through the material, that he was “[t]old best option to plead guilty, as if he runs the case I will lose due to unpreparedness of defence and hostility of judge”. At another point again, in an affidavit sworn on 23 March 2000, the applicant said -
“I believed there was more significance, but I knew that then I had to make a choice. My thinking was along the lines of, if I wanted to run a trial I had to put the application in that day. I had to decide then on whether to enter a guilty plea or not, because, if I went not guilty I’d be straight into a trial on the Tuesday or Wednesday. Then I would only be left with only one day to explore the reports conjunctively and most of the next day or two would be spent incommunicado on transportation. Based on what the judge had said there wasn’t going to be any further adjournments. I thought that with only one free day the whole thing was impossible to put everything together: find witnesses; conference with legal team; subpoena psychiatric evidence. I would then run the risk that there might not be any real link and I would be in an even worse position. I thought it was too great a risk to run the trial because I wasn’t sure what further investigation would yield. I felt I had no option but to plead to the indictment.
My previous solicitors and counsel, Joan Baptie and Andrew Martin, had told me that if I ran the trial and lost then I would get 18 years on the bottom with 24 on top. I asked Phillip what sort of sentence I could expect based on what I’d told him. He said, ‘I’ll have you out in three’. This seemed too good to be true. I also asked him about the differences between the facts. He said that the plea meant ‘the essential legal ingredients of the offence only’. I said that I wanted it subject to agreement of facts. I wanted all the inadmissible bullshit out and that I wanted a control on the press. Mr Ramos said “a control order’, I said yes. Mr Zhou wrote down these things.
I then signed a bit of paper. I noted that he wrote something like ‘foresaw the consequences of my actions and went ahead and did it’. I baulked at this and then he told me that, ‘if it helps, your mother told me to tell you that it’s only words and after this is done all this will go away and we can get all your friends up for the sentencing. That will be like a mini trial in itself’. I signed the bit of paper.”
It is not correct that Mr Ramos had returned to court and failed to obtain an adjournment. The judge had not been receptive to an adjournment, but had left the matter in the list while Mr Ramos saw the applicant. The last paragraph just set out can not be accepted, nor do I accept that Mr Ramos told the applicant that he would “have him out in three”.
Mr Ramos gave evidence that he was in a position to conduct the trial competently if required to do so. He said that in his opinion -
“ … notwithstanding that Mr Rae was under enormous stress and pressure due to the pending trial, there was no improper pressure brought to bear upon Mr Rae to enter his plea of guilty.”
He recalled that the applicant wanted “some sort of ‘control order’ on the press being made out and the facts on sentence be agreed”, and that he said he would negotiate with the Crown Prosecutor as to documents to be tendered and could reach agreed facts pursuant to s 191 of the Evidence Act 1995.
Mr Ramos returned to court, and the applicant was brought in. An indictment containing only the count of causing grievous bodily harm with intent to murder was presented, and the applicant pleaded guilty. The matter was adjourned to 13 December 1999 for submissions on sentence. The Crown Prosecutor said, in answer to the judge, that he was not then in a position to “hand up material” and he would speak to Mr Ramos and “we will work out what could be tendered on the next occasion and make some of the material available”.
Application to withdraw the plea of guilty
On 27 October 1999 the applicant told his mother that he wished to withdraw his plea of guilty. The applicant’s mother discussed with Mr Ramos and Mr Zhou withdrawal of the plea, and in early November 1999 the applicant gave instructions for an application to withdraw it. Mr Ramos correctly felt unable to continue as the applicant’s counsel.
On 30 November 1999 Hovan & Co filed a notice of motion in which the applicant applied for leave to withdraw the plea entered on 25 October 1999. Affidavits of the applicant were sworn on 24 and 26 November 1999. The applicant said in the affidavits that he was “pressured” to plead guilty. He said that he had thought that, with new solicitors being brought in, he would be given an adjournment, but was told by Mr Ramos that the trial would be forced on and an adjournment could not be obtained; that he had had little sleep and was stressed and anxious and suffering from a chest infection, and was not in a mental state to do anything other than plead guilty. One of the affidavits ended -
“26. I feel that I was denied me the right to challenge the allegations against me. That I was placed in an invidious position and under was tremendous psychological pressure to plead guilty through a cumulation of circumstances. I am not guilty of this charge and I have been denied the right to challenge this.”
The notice of motion was returnable on 7 December 1999. Ms Susan Kluss appeared for the applicant. There was a difficulty in the arrangements for having the applicant present, and the application was adjourned until the next day. According to the applicant, Ms Kluss saw him later in the day, told him that the application to withdraw the plea would not succeed and “tried to explain the benefits of a guilty plea”.
The judge had commented on the “oddity” that Hovan & Co, which had acted for the applicant when he entered the plea, continued to act for him when he sought to withdraw it. As a result, Hovan & Co ceased to act. On 8 December 1999 the applicant’s mother told the judge that she had contacted other solicitors, Dodaro & Co, and that subject to the applicant’s instructions they were willing to act for him. It was said that the application would be privately funded if legal aid was not available. There was a further adjournment to 9 December 1999.
Dodaro & Co were engaged, and Mr Dennis Stewart was briefed. On 9 December 1999 Mr Stewart asked for an adjournment so that he could confer with the applicant and advise him in relation to the application. At that time the papers had not been received from Hovan & Co, and at Mr Stewart’s request the application was stood over to 13 December 1999.
Withdrawal of the application and confirmation of the plea of guilty
The hearing of the application on 13 December 1999 began with the tender of material by the Crown, without objection by Mr Stewart appearing for the applicant. The material included affidavits from Ms Baptie and Mr Martin and Dr Milton’s report. A further affidavit from Mr Ramos was foreshadowed. (The applicant had waived any privilege.) The applicant knew that Dr Milton’s report was in the Crown brief, and read it at this time. Mr Stewart did not object to its use, nor did the applicant protest that it should not be used.
Mr Stewart told the judge that he had received thorough instructions over the weekend, and that he wished to cross-examine Ms Baptie and Mr Martin and that he would be relying on the applicant’s affidavits and on further evidence from the applicant and from his mother. The matter was adjourned to 14 December 1999, with directions for completing the affidavit material and so that Ms Baptie and Mr Martin could be made available for cross-examination.
Mr Stewart and his instructing solicitor then saw the applicant in the cells.
There was remarkably little evidence of what took place, but Mr Stewart advised the applicant as to withdrawing the application: in the applications, in answer to a question from the applicant he said -
“Q. Over the weekend we discussed various reports and things and on the Monday after, during the point you gave the advice, can you say on what you based your advice? It is better if I let you tell us. Tell us on what you based your advice?
A. What did I base my advice on in relation to the application to withdraw the plea?
Q. Yes.
A. I based my advice on the chance of success of that application and in particular the strength of the case against you and all the other considerations that one must take into consideration on an application to withdraw a plea.
In other words, is it likely to succeed based on what one must demonstrate in order to succeed on such an application.”
He further said -
“A. Well, my advice to you that the application to reverse your plea would, in my view, at the time have been unsuccessful was based on my understanding of what you need to show and demonstrate to the court that there was a problem with the way the plea had been entered, whether it had been entered in some fashion erroneously or based on misinformation or bad advice, or something of that nature, and I couldn’t see --
Q. On the evidence before you?
A. --- on the evidence before me that I could demonstrate that to the court.”
According to the applicant in one of his affidavits, Mr Stewart referred to the applicant’s statement to the court on 21 October 1999 that he was “prepared to accept [Ms Mazzali’s] evidence” and to “the various admissions” in Dr Milton’s report, and -
“I could not answer these … He advised me that based upon my inability to answer these questions put to him that the motion would fail and advised me to withdraw it. Accordingly I did so.”
In a later affidavit this became -
“I could not articulate a strong enough response to the satisfaction of my barrister. The stress and anxiety I was suffering affected me to the point where I couldn’t remember things. He advised me that based upon my inability to answer these questions put to him that the motion would fail and advised me to withdraw it. Accordingly I did so.”
In the result, the applicant gave written instructions -
“I Stephen Rae have listened while my counsel Mr Stewart has explained to me the extreme difficulties associated with the application to withdraw his plea.
Mr Stewart has advised me that the advise given by his previous lawyers would not be characterised by her Honour as either incompetent or unsound advise.
Mr Stewart has also advised me that because of the various admissions + confessions made at various times concerning the effects of the 4th Feb 1997 that it is inadvisable or at least extremely unlikely that her Honour would find that Mr A Martin was wrong when he advised Mr Rae that he had no arguable defence.
In the light of this advise I instruct my legal representative to withdraw the notice of motion.
I instruct my legal rep to seek a date for sentencing of at least four weeks, or some time when a member of my family may attend.
Dated 13th December 1999
Stephen J Rae” (emphasis added)
The emphasised words were added by the applicant in his own writing.
Mr Stewart returned to court, and the applicant was brought into court. Mr Stewart informed the judge that he had instructions to withdraw the application to withdraw the plea. The transcript records -
“HER HONOUR: Mr Rae, you understand that by giving those instructions to your counsel that what you are doing is confirming in effect your plea of guilty which you entered on 25 October of this year, to a count which – on an indictment to one count of causing grievous bodily harm to Gabriella Mazzali with intent to murder her. You understand that to be the case?
PRISONER: Yes your Honour.”
Mr Stewart applied for an adjournment, saying that he was not briefed in relation to sentence although the applicant had indicated that he would like him to appear, and referring to obtaining legal aid in relation to sentencing and desiring some time to “properly prepare and also … spend some further time with my client, if in fact he does wish me to stay in the matter for the purpose of sentence.” He said that he was able to deal with the matter in the following week.
The judge was not receptive. She said that she thought that legal aid could be arranged promptly and that, if Mr Stewart had available to him everything obtained by the applicant’s previous legal representatives (with which Mr Stewart agreed), he could deal with the matter. She asked Mr Stewart to decide what else he required and take further instructions. She said she would give some further time if necessary, but that the matter had to be resolved and she would “look at it” the next morning to ascertain the position.
The transcript records -
“STEWART: Your Honour, I’ve just been informed by my client that when the plea was entered, it was entered on the basis that there needed to be some discussion with the Crown in relation to the agreed facts, but there may be some issue in regard to some of the facts. That’s my instruction that that occurred when the plea was entered.
HER HONOUR: You’d better tell me tomorrow morning --
KELLY: Your Honour, my understanding was that we had taken an additional statement from the victim, that we agreed on plea that we wouldn’t tender that. That was a statement that was taken in the week or two weeks prior to the trial, they related only to history. But there was no other agreement, the only thing what occurred was that the defence indicated they wished to look at all the material to see whether they had an objection to anything. It could perhaps be left in that, if there’s an objection to any of the material, that can be dealt with tomorrow.
HER HONOUR: Yes, Mr Stewart, I’ll require tomorrow that it be put on the record if there’s any matters in dispute or objection taken, I shall require that to be put on the record tomorrow, and how it’s proposed to deal with it all. So it must be put on the record. But I note what the Crown says that the additional statement from the victim has not been – was not tendered as part of the Crown brief, that in accordance with the agreement apparently at the time the plea was entered.
KELLY: And I think we also indicated we wouldn’t call – we hadn’t intended to call the parents of the victim, so we didn’t include their statements and there was another lady who we weren’t bringing back from England, and we weren’t including her statement.
HER HONOUR: Mr Stewart, no doubt you’ll be advising your client and looking carefully at the true worth of any matters which are going to be opposed in relation to the originally agreed facts, as I understand them, because clearly the benefits of s 439 diminishes as these matters are raised.
STEWART: Yes, certainly your Honour.
HER HONOUR: And with the potential problem for your client if those are ultimately – if the facts are ultimately determined against him where there is a dispute. So no doubt care will be given to ensure, I’m sure it will be on your part that those matters in dispute are truly important and relevant. The matter is stood over to 10 o’clock tomorrow for the purposes I’ve already placed on the record, and the prisoner is remanded in custody.”

The applicant characterised this in the applications as the judge saying that he would receive an increased sentence, or a lesser discount, if he challenged any facts.
Sentencing
Legal aid was arranged for the sentencing proceedings. On 14 December 1999 the Form 1 was signed by the applicant and handed to the judge. The transcript records -
“HER HONOUR: Mr Rae would you stand up please? Mr Rae yesterday you withdraw your application for leave to reverse your plea and you confirmed your plea of guilty to a count of causing grievous bodily harm to Gabriella Mazzalli with intent to murder. You have now signed a Form 1 and do you ask that I take into account in sentencing you in relation to the assault on Ms Mazzalli one offence of assault occasioning actual bodily harm to a person Steven Swane?
PRISONER: Yes.”
The tender of the Crown materials was confirmed, with specific reference to the fact that it contained Dr Milton’s report. Mr Stewart said that he wished to tender some documents in the applicant’s case and would like some more time with the applicant, and that he did not envisage a wide dispute as to the facts “but there may be one or two minor matters in the facts that the Crown have handed up which I need to resolve with my client”. Time was allowed. Later in the day some documents were tendered on behalf of the applicant, and it was said that he wished to call some brief oral evidence from persons who had known him and the question of the applicant himself giving evidence was “still unresolved”. The matter was adjourned to 15 December 1999.
On 15 December 1999 Mr Stewart informed the judge that he would not be calling oral evidence in the applicant’s case. According to the applicant, Mr Stewart had advised him that he should not give evidence or challenge any of the Crown case because, given the applicant’s comments on 21 October 1999, the judge would find the facts against him “and this would result in an even greater sentence for me”. He said -
“I could not articulate any response. My barrister advised me not to tender the statements of Dr Westmore or Dr Parmajani [sic], or my statement or get in the witness box as he was not confident I would be able to argue my case and the judge was so hostile towards me.”
Mr Stewart, however, gave evidence that he discussed with the applicant his earlier concession as to Ms Mazzali’s account of the facts, and that he was concerned about whether anything would be gained by a hearing on facts which may ultimately have been peripheral and about the applicant losing the benefit of the plea. He said in answer to the applicant, “I was concerned that you might lose what little indication of remorse there seemed to be”. In fact, written instructions were signed by the applicant -
“I Stephen Rae instruct my legal rep that I have read the victim impact statement & acknowledge the factual issue & contents of the said statement.
I was further advised by my counsel that it would not be in my best interest to give oral evidence. I further confirm that I agree with that counsel has advised.
(signed)
Dated 15th December 1999”
Mr Stewart tendered some “references”. The judge heard submissions, from Mr Stewart and from the Crown Prosecutor.
On 23 December 1999 her Honour delivered her remarks on sentence, and convicted and sentenced the applicant.
The appeals – to abandonment of the conviction appeal
On 12 January 2000 the applicant filed a notice of appeal against conviction and sentence. The notice indicated that he was not then legally represented, and did not contain any grounds of appeal.
Shortly thereafter the applicant became represented by Ross Hill & Associates. Mr Paul Byrne SC was briefed.
Mr Byrne provided an advice of 23 April 2000. The applicant did not like the advice. He wrote to Mr Byrne saying that fresh evidence had come to light throwing some doubt upon the conviction, and explained in some detail why he considered he had been the victim of fraud, deceit, corruption and manipulation. His letter suggested, contrary to his earlier position, that Ms Mazzali’s “evidence looks increasingly unlikely”.
Mr Byrne then provided an advice dated 26 June 2000. He was of the opinion that there was “no merit” in the appeal against conviction, but that there was merit in the application for leave to appeal against sentence.
As to the former, Mr Byrne considered that on the materials before him there was no real prospect of acquittal if the matter had gone to a trial, and that the applicant was properly advised that the best course available to him was to seek to reduce the sentence likely to be imposed and the only effective way in which that could have been done was by entering a plea of guilty. He said that the applicant had the right to put the Crown to proof of the charge against him, but -
“The fact that he did not exercise that right is something which cannot now be overturned unless it can be shown that the plea of guilty was not entered in full knowledge and understanding of its legal significance and its legal consequences. I can not see anything in the materials here which could justify even an argument, let alone a conclusion, that there was any basis on which the correctness of the plea of guilty could be challenged.”
On 12 April 2001 Mr Byrne wrote to Mr Hill confirming his opinion that “there is no reasonable prospect of success in Mr Rae’s proposed appeal against conviction”. He advised that a notice of abandonment should be filed.
The appeal was called over a number of times. According to the applicant directions were given for filing grounds of appeal, but were not complied with. Other evidence suggested that the Registrar was told on many occasions that a psychiatric report and a report of Dr Collins were awaited, and on 9 July 2001 that instructions were to be obtained on whether to proceed with the appeal against conviction.
In July and August 2001 the applicant was still writing to Hill & Associates to the effect, amongst other things, that he wished to appeal against conviction. In a letter of 24 August 2001 he said that he “may have to forgo the conviction application” but “in filing a notice of abandonment my right to appeal conviction is to be reviewed later”. In the applications the applicant said that he abandoned the appeal against conviction conditionally upon receiving a copy of the written instructions of 13 December 1999, which he said he had not been able to obtain. I do not think there was any effective condition, but it does not matter.
Mr Hill appeared at a callover on 27 August 2001 at which, according to his letter to the applicant, “[a]s anticipated the Registrar threatened to have the matter listed for summary dismissal”. The Registrar was told that the applicant’s appeal against conviction was abandoned. The appeal was given a hearing date on 12 December 2001 and was listed as an application for leave to appeal against sentence.
The applicant accepted that he had abandoned the appeal against conviction. Any condition was within his own camp. No formal order was made dismissing the appeal against conviction, nor was there filed a notice of abandonment of the appeal whereby there was a deemed dismissal pursuant to r 27 of the Criminal Appeal Rules.
Later reports
The applicant sought to rely in the applications on additional reports of Dr Collins, Dr Parmegiani and Ms Duffy, in relation to the conviction appeal and also in relation to reopening the sentence appeal.
Dr Collins provided a report dated 30 September 2002. He said that he had been asked “to comment further on the injuries sustained by you during the fire on 3rd February 1998”. From his review of medical records and other documents he opined that the burns to the applicant’s right leg were “consistent with pouring of petrol, as described by you” although accidental spillage could not be excluded, and that the burns were not consistent with “a ‘simple splash hypothesis’”. He continued -
“4. It has to be conceded that Ms Mazzali has sustained significantly greater burns, although it is not possible, in my opinion, simply based on their extent, to indicate that they were sustained in an intentional manner or alternatively, during a relatively violent struggle where-by the greater quantity of fluid spilled over her. The eye witness accounts would be important in deciding this particular issue.
Ms Mazzali’s movements and the pouring of water after the fire had been lit may have had some role in increasing the extent of her burns, with movement being the more important (as a consequence of airflow).
In summary, therefore, it is not possible in my view, to necessarily equate the extent of her injuries with sinister intent (although such could not be excluded.)”
Dr Parmegiani provided a report dated 7 August 2003. Amongst other things, he recounted the applicant’s description in their second interview of feelings of depression and suicidal ideation. He opined that the applicant had “a personality structure consistent with a diagnosis of borderline personality disorder” and “satisfied the diagnostic criteria for both alcohol abuse and dependence”. He said that he remained of the opinion that the applicant’s “ability to structure and organise his behaviour for several hours during that day suggests that he was in some control of his actions, and that he was able to appreciate the potential wrongfulness of his behaviour”. He continued -
“The question of specific intent with respect to the charge of attempted murder is much less clear. Mr Rae states that at the time he broke into Ms Mazzalli’s flat it was his intention to self immolate in front of her, or at least threaten to do so, to elicit a sympathetic response from her. He states that it was only in the ensuing commotion that he accidentally spilled accelerant on Ms Mazzalli, with the accelerant igniting and burning her when he set himself on fire.
From reading his file I appreciate that there are different versions of the same event, and I believe that the question as to which version of the events is the most believable falls outside the scope of my report, and should possibly be put to a jury or to a judge.
I can however say that it is not unusual for a person with borderline personality disorder to make threats of suicide or actual suicidal gestures when confronted with the breakup of a relationship (see Criteria 1 and 5 in the attached Diagnostic Criteria for Borderline Personality Disorder).
I would therefore conclude that it is possible, as Mr Rae states, that his original intention in attending Ms Mazzali’s flat on the 3 February 1998 may have been to force a rekindling of their relationship through the threat of suicide or an actual suicidal gesture, and that the validity of such a proposition ought to be put to a court, and determined on the basis of all available corroborative evidence.”
Ms Duffy provided a report dated 17 July 2003. She said that it appeared the applicant “moved between various mental states and emotions”, sometimes with clear intent and sometimes “dreamlike”, and that he was “under extreme stress at the time, which may have led to transient dissociative symptoms”. She continued -
“Whether these transient states amount to mental illness is an issue I am not qualified to comment on. This is more the domain of a psychiatrist. It does seem however that his response to abandonment and his subsequent actions that followed are far more indicative of more serious psychological pathology than the responses of a ‘rejected lover’. Dr Milton in his report of the 12th October 1999 regards this as basically part of normal life and emotions though distressing. Although Stephen’s behaviour of purchasing the petrol and taking it to Gabriella’s flat showed some intent, it is still not clear whether he wanted to hurt himself, hurt her or both. His description of subsequent events is suggestive of immense emotional disturbance with some dissociation and feelings of being in a dream world. However, it is not known if this transient episode may be considered as a sign of mental illness or an extreme disturbance in mood. I adhere to my original conclusions that his mental state was further affected by his alcohol consumption and food and sleep deprivation, which would have also served to cloud his judgment.”
Consideration of the conviction appeal
The central issue, but not the only one, is the applicant’s understanding that he was admitting his guilt to the court and intention to do so.
The applicant raised from early on a defence of absence of intent to murder. In March – April 1999 he was suggesting that he did not have the intent, although not in absolute terms but that (as he told Ford Gaitanis) it was premature to embark on a plea until psychiatric advice had been received and (as he told Ms Baptie) he was “trying to argue” that he did not have the intent. The psychiatric and psychological reports obtained by the applicant did not assist him in this respect. The report of Dr Milton was quite adverse.
The applicant seems to have become more firm in asserting that he did not have an intent to murder, see the “defence of intent” described to Mr Martin, but even in mid-October 1999 he took time to consider pleading guilty and declined to do so while waiting for Dr Westmore’s report. On 21 October 1999 he resisted Mr Martin’s advice that he had no defence and it was in his interests to plead guilty, but with only a sketchy and second-hand understanding of what Dr Westmore would say. In my opinion, the applicant was still hoping for psychiatric support for what he described in the earlier letter to Ford Gaitanis as his “view” that at the time he was suicidal.
The trial date of 25 October 1999 arrived, and an adjournment of more than a few days was unlikely. Dr Westmore’s report had been received, and Mr Ramos gave comprehensive advice. Undoubtedly the applicant was in a stressful situation, as would be any accused person facing an imminent trial and called upon for a decision. But pleading guilty had been under lengthy consideration. The applicant had been hoping for a psychiatric basis for a defence in relation to intent, but that had been explored and found wanting. Universal advice to plead guilty had been given, and the applicant had been advised more than once that running a defended trial risked losing a significant reduction in sentence. He took the advice.
I am quite unpersuaded that the applicant’s decision to plead guilty was not a genuine acknowledgement of an intent to murder, together with the other elements of the offence. The applicant was an intelligent person, who had participated extensively in the conduct of his litigation. He was not a person who had in the past been overborne by his legal representatives, quite the contrary. It is not insignificant that, in the affidavit of 23 March 2000, the applicant did not assert his innocence but rather that he was under time constraints putting everything together and “would then run the risk that there might not be any real link and I would be in an even worse position” and “it was too great a risk to run the trial because I wasn’t sure what further investigation would yield”. The applicant had not obtained the hoped-for psychiatric support, and was not confident that it could be obtained. He made a rational decision, not that of a man in an abject mental state, perceived to be in his best interests, opting for a lesser sentence because of a plea of guilty than the sentence he was likely to incur if there was a trial when he had not been able to obtain the hoped-for psychiatric support.
The facts that the applicant wanted a “control order” in order to reduce publicity and was concerned with the agreement as to facts – in substance meaning that the stalking evidence should be excluded – pointed to an understanding of what he did. In my opinion, he accepted that the efforts to find support for a “defence of intent” had failed, and he meant to acknowledge, as the written instructions of 25 October 1999 said, “the essential element of the offence, that is, intent to murder”.
The applicant applied to withdraw the plea of guilty, but withdrew the application on advice that it was unlikely to succeed. The advice was correct advice, but the failure to persist with the application does not assist the applicant’s case that the plea was entered in circumstances giving rise to a miscarriage of justice.
I go to the grounds of appeal in the document filed on 7 May 2004 and other matters on which the applicant appeared to rely. I repeat that the submissions, which often overlapped or were mingled, were often difficult to understand, and I have endeavoured to find their substance. It is not practicable to reproduce them at length.
Ground 1 was “The failure or inability of initial representatives to include relevant information to experts and obtain evidence due to funding difficulties.” The applicant submitted under this ground that the advice that no defence was available and he should plead guilty was incorrect, as shown by reports of Dr Collins dated 30 September 2002, Dr Parmegiani dated 7 August 2003, and Ms Duffy dated 17 July 2003. He referred to “absence of mens rea to the specific intents of s 27 and s 33”, and asserted that, although there was no defence of mental illness, “the evidence of suicidal ideation, alcoholism and depression …. allows a defence of necessity to the break and enter offences of the Crimes Act such as s 110”. He said that the original reports and the advices founded on them were flawed, and apparently as reasons for the deficiencies in the reports referred to absence of legal aid for the committal hearing whereby he had been “unable to present his own material”, to discrimination in restricted access to Crown documents, and to a variety of other matters.
There is no reasonable basis for neglect of the applicant’s interests whereby the expert assistance obtained prior to his plea of guilty was flawed. Dr Collins, Dr Parmegiani and Ms Duffy were appropriately engaged and reported fully.
Although the applicant appears to think otherwise, I do not think the 2003 reports would have materially assisted him. They suffer from dependence on the applicant’s descriptions of his mental state given much later than the events of 1998, and such assistance as might be foreshadowed depends on acceptance of a ‘version of the events’ (in Dr Parmegiani’s words) of accidental spillage which is not consistent with Ms Mazzali’s account as accepted by the applicant on 21 October 1999. Had this been a case of fresh evidence in a conviction appeal after a trial, they would not have demonstrated absence of an intent to murder such that the jury would have been caused to entertain a reasonable doubt, see Ratten v The Queen (1974) 131 CLR 131; Lawless v The Queen (1979) 142 CLR 659; R v Abou-Chabake [2004] NSWCCA 356. They do not provide a basis for a miscarriage of justice through the applicant pleading guilty upon the earlier reports, and that of Dr Westmore, not supporting his hoped-for defence.
Grounds 2, 3, 4, 10 and 11 involved Dr Milton’s report.
Ground 2 was “Failure of the Crown to ensure that the case was presented with fairness to the accused”. The applicant submitted under this ground that Dr Milton’s report was improperly obtained, that this caused disagreement between himself and his then counsel and was the reason for their withdrawal, and that the withdrawal led to restriction on legal aid so that he could not seek an adjournment and have the opportunity to obtain a more comprehensive psychiatric report. By this reasoning, it was said that the Crown’s “unethical conduct involving Dr Milton” was “a substantial causal factor in events leading to [the applicant] being unable to exercise a free choice of will during the plea of 25th Oct”.
This is fanciful. That Dr Milton interviewed the applicant without formal consent from his legal representatives was unfortunate, but Mr Martin correctly recognised that it did not provide a basis for a stay, and it was not the reason for the change in legal representation. Nor did it lead to inability to obtain an adjournment, or to inability to exercise a free choice of will on 25 October 1999.

Ground 3 was “Failure to disclose evidence in relation to preparation of case before 23rd August 1999 and failure to disclose scientific evidence alongside Dr Milton’s report when tendering it, failure to disclose that the report was improperly obtained”. In his submissions under this ground the applicant said that part of the Crown’s duty to present its case with fairness to an accused was to make “the relevant material” available at a time when a defence challenging the “admissions” within Dr Milton’s report could have been prepared. He referred again to the reports of Dr Collins, Dr Parmegiani and Ms Duffy in 2002 and 2003 apparently on the basis that they would have provided reports in those terms, rather than the terms of their 1999 reports, had the Crown done so. Elsewhere in the material the applicant asserted that there was “manipulation” of “admissions” in Dr Milton’s report, being statements said to have been made by medical staff rather than the applicant while he was in hospital; it was said also that the Crown had “manipulated” and had withheld medical records.
The applicant’s legal representatives, and the applicant, knew of the circumstances in which Dr Milton’s report had been obtained: there was nothing for the Crown to disclose in that respect. The plea of guilty was entered prior to any tender of Dr Milton’s report. What should have been made available to the defence at some earlier time remained rather obscure in the applicant’s submissions; I understand it to have been material going to the applicant’s condition whilst in hospital being treated for his burns, the applicant believing that he could not have made what he regarded as admissions found within the report. The medical records were available to the applicant, who was aware of his condition and of whether he could have admitted anything in fact said by medical staff. I am not persuaded that there was any failure in the Crown’s provision of material which hampered the applicant in his decision to plead guilty.
Ground 4 was “The advice of 13th Dec that the motion will fail is incorrect”. The applicant submitted under this ground that the advice was incorrect because it did not have regard to “the circumstances of Dr Milton’s report and disclosure and conduct issues and therefore is flawed as it is not a ‘novus actus interveniens’ but advice based upon incomplete evidence and therefore and provides for a withdrawal of plea”.
The submission appeared to be that Mr Stewart advised on 13 December 1999 unaware of the circumstances in which Dr Milton’s report had come about, perhaps also unaware of the failure of the Crown to make “the relevant material” available as contended under ground 3, and that the applicant therefore acted upon flawed advice. I do not think it was established that Mr Stewart was unaware of the circumstances in which Dr Milton’s report had come about. He said to the judge he had received thorough instructions over the weekend, and the applicant was certainly aware of the circumstances. Whether or not Mr Stewart was aware, his advice that the application to withdraw the plea of guilty should be withdrawn was sound advice. Of more relevance was whether Mr Ramos’ advice on 25 October 1999 was flawed because Mr Ramos was unaware of the circumstances in which Dr Milton’s report had come about. As to that, the same observations may be made. I do not think that there is anything in this ground.
Ground 10 was “Inherent bias in Dr Milton’s report”. The applicant submitted under this ground that “from the defence reports that have now become available”, presumably referring to the 2003 reports of Dr Parmegiani and Ms Duffy, Dr Milton’s report “stood alone”. He rather indirectly referred to it as a report not prepared impartially, and said that if the fresh reports supported a defence he should be permitted to withdraw his plea.
Dr Milton’s report was adverse, but there is no reason to consider it partial. As I have indicated, the fact of the fresh reports does not provide a basis for a miscarriage of justice in the entry of the plea of guilty, nor is there a basis in a lack of impartiality in Dr Milton’s report.
Ground 11 was “Failure to object to Dr Milton’s report”. In support of this ground the applicant submitted that Mr Stewart did not object to the report when tendered, or request that there be provided medical information to which it referred, referring again to a duty on the Crown to act fairly.
It may be that Mr Stewart could have objected to the tender of the report on 13 December 1999, although it would have been an understandable forensic decision not to do so. This was not explored in the evidence. Failure to object did not have much to do with whether the plea of guilty on 25 October 1999 was in circumstances giving rise to a miscarriage of justice. The applicant’s submission was probably not meant to be confined to the tender of the report. Elsewhere in the material appeared the contention to the effect that the plea of guilty was in the light of the Crown’s agreement not to tender Dr Milton’s report, apparently meaning that it was conditional upon the report not being used by the Crown. More fundamentally, although not clearly put by the applicant, was the plea of guilty vitiated because the advice given to him on 25 October 1999 wrongly regarded Dr Milton”s report, or its content, as available for use against the applicant in the trial?
Mr Ramos’ advice took into account Dr Milton’s report, or its content, as part of the Crown case to be faced by the applicant in the trial – he regarded the report as “likely to be persuasive to the Court and devastating to [the applicant’s] case”, and told the applicant so. The plea was entered on Mr Ramos’ advice founded in part on Dr Milton’s report, and the withdrawal application was abandoned when the Crown was known to be relying on Dr Milton’s report. In my opinion, it had come to be accepted that Dr Milton’s report was available to the Crown. Why that was so is unclear, although it is an understandable forensic decision and it was not put to Mr Ramos that he had misadvised the applicant in this respect. That may not have the significance it might otherwise have when the applicant was unrepresented in the conduct of the applications, but at the time he knew of his former legal representatives’ concerns, and had been told by Mr Martin that the Crown had agreed not to call Dr Milton; yet so far as appears he did not question Mr Ramos’ regard to the report. It was, I think, for the applicant to make good a vitiating regard to the report in this respect, and I do not consider he has done so.
Grounds 5, 6 and 8 involved the conduct of Hovan & Co. They can conveniently be dealt with together.
Ground 5 was “Improper pressure leading into the plea”. It was submitted under this ground that an application for an adjournment on 25 October 1999 was “not argued” because the grant of legal aid did not permit an application, and that Hovan & Co did not tell the applicant of that restriction. The applicant described this as fraud. Elsewhere in the material the applicant said to the effect that his plea was tainted by fraud of Hovan & Co in charging him at the same time as receiving legal aid payment and in not telling him that the grant of legal aid did not extend to vacation of the trial date, whereby he was “denied a free choice of will in entering the plea”. Ground 6 was “That the advice of 13th Dec to adhere to the plea was incorrect”. It was submitted under this ground that the advice did not take into account “the fraud”, apparently meaning the fraud of Hovan & Co. Under ground 8, “Incompetence of representative”, it was said that when the applicant sought to withdraw his plea of guilty Hovan & Co tried to cover up the fraudulent conduct, with the result that the sentencing proceedings were unprepared. This ground goes to sentencing rather than conviction. Elsewhere in the material the applicant asserted that if Hovan & Co had seen him over the weekend of 23-24 October 1999 he would have sought a judge alone trial and obtained an adjournment, and that he was therefore not able to exercise “a free choice of will”.
On the evidence, Hovan & Co did separately charge for services covered by a grant of legal aid. That had no effect on adjournment of the trial. Whatever the grant of legal aid said, Mr Ramos did seek an adjournment of the trial. A lengthy adjournment was not to be had, but the judge indicated proceeding later in the week or when the new lawyers were prepared. There is nothing in these matters to taint the applicant’s exercise of his will.
Ground 7 was “Failure to adhere to the circumstances of the plea”. The applicant submitted under this ground that he had requested an agreement on facts, meaning that he wanted Dr Milton’s report and “certain witness statements” (probably the stalking evidence) left out. He said that “[t]here are legal relations and an inducement to plead guilty which the applicant relied on”, and that there was also unconscionable conduct causing him detriment when the judge relied on Dr Milton’s report in sentencing. Elsewhere in the material the applicant said to the effect that the plea of guilty was subject to agreement on the facts, apparently meaning conditional upon reaching agreement. In one of his writings in the material he said that there was “a lot of material in the Crown case which was so prejudicial, emotive and nonsense, I would never have agreed to plea [sic] to that charge unless it was agreed this material would be left out”.
I do not accept that the plea of guilty was conditional, but in any event there was agreement on the facts; the facts were to be agreed, and they were agreed. There was no inducement involving not relying on Dr Milton’s report – as has been seen, the report was prominent in Mr Ramos’ advice.
It may be mentioned at this point that, again elsewhere in the material, the applicant said to the effect that the plea of guilty was subject to obtaining a control order on the press. The applicant wanted a control order, but can not have expected that one would be granted. The plea was not conditional on obtaining one.
Ground 9 was “Refusal to grant adjournments on 22nd Oct and 25 Oct and 13th Dec resulted in unfair trial and sentencing. That the advice of her Honour Justice Karpin advising the applicant not to challenge the Crown brief and the matter was ready to proceed was erroneous and overpowering”. In part the submissions under this ground went to miscarriage of the sentencing proceedings, but the substance of the submissions in support of it was that further time for preparation of the defence case, including the application to withdraw the plea of guilty, should have been allowed, and that the applicant had been overborne on 13 December 1999 by the judge “citing possible greater tariffs if the applicant dared assert his version of events”. Elsewhere in the material the applicant said to the effect that he would not have withdrawn the application to withdraw the plea of guilty if he had been aware that he would not be given an adjournment of the sentencing hearing.
The applicant had no entitlement on 25 October 1999 to a further adjournment of the trial, although as I have said the judge had indicated proceeding later in the week or when the new lawyers were prepared. While the applicant was not in a comfortable position, the trial date had arrived in due manner and Mr Ramos was in a position to conduct the defence. That the applicant would have liked more time to try to obtain psychiatric support for a defence of absence of intent to murder, the most recent attempt through engagement of Dr Westmore not having borne fruit, did not make refusal of a lengthy adjournment unfair. I am not satisfied that the applicant’s case was unprepared or that his defence could not properly have been conducted, or that he was not in a position or a condition to choose his path.
On 13 December 1999 the applicant instructed that a four week adjournment be sought, or to a time when a member of his family could attend. Given the history of the proceedings, however, he can not have thought that an application would be favourably received. In my opinion, the withdrawal of the application to withdraw the plea of guilty was an acceptance that the plea should stand and confirmation of the acknowledgment of the intent to murder. The judge’s observations on 13 December 1999 were after the application to withdraw the plea of guilty had been withdrawn. They were a realistic reminder to Mr Stewart in the interests of the applicant, not a threat tainting the maintenance of the plea.
Grounds 12 and 13 were directed to the sentencing proceedings, but it may be that the applicant intended ground 13 to go in part to conviction. Ground 13 was “That Her Honour failed to hear sworn evidence from experts when determining penalty”. The submissions under the ground, read benevolently, could have included that the plea of guilty accepted only the essential elements of the offence; that any further findings by the judge required sworn evidence; and that if there had been sworn evidence the judge would have accepted Ms Duffy’s opinions. Elsewhere in the material the applicant asserted that in pleading guilty he agreed to the legal ingredients of the offence only, with the facts on which he was to be sentenced to be agreed, perhaps intending to say that his plea did not extend to intent to murder which was something to be found, if it was to be found, in the further facts to be agreed.
If this was what the applicant intended, there is no substance in it. The applicant plainly knew that facts were to be agreed, going beyond the bare legal ingredients of the offence, and equally plainly the intent to murder at the centre of the defence he would like to have brought was one of the essential ingredients. This was noted in the signed instructions of 25 October 1999. The facts were agreed, Ms Duffy’s report was before the judge, and there was no occasion for sworn evidence.
Ground 14 was not formulated in terms, but the submissions under that heading were to the effect that, pursuant to s 7 of the Criminal Appeal Act, there should be substituted for the offence of causing grievous bodily harm with intent to murder a “verdict of a lesser charge”. Section 7 of the Criminal Appeal Act does not apply in the present circumstances.
Ground 15 was “That in sum total, the collective appeal points raised, whether individually they have failed or not should be considered as one appeal point and amount to a miscarriage of justice in and of themselves”.
The ultimate question is whether there was a miscarriage of justice in the circumstances in which the applicant came to enter the plea of guilty. It is necessary to take account of all the circumstances, beyond the central issue of the applicant’s understanding that he was admitting his guilt to the court and intention to do so. Considering in their entirety the applicant’s submissions and the material before the Court, I am not persuaded that there was.
Sentence - introduction
In Grierson v The King (1938) 60 CLR 431 the appellant had been convicted, his appeal against conviction had been dismissed, and he sought to reopen his appeal on the ground that facts had become known concerning a material witness for the Crown which might affect the conviction. It was held that, the Court having heard the appeal on its merits and given its decision, the appeal could not be reopened.
In R v Reardon (No 2) (2004) 60 NSWLR 454 this Court considered whether the principle stated in Grierson v The King was qualified. After extensive consideration of the authorities Hodgson JA, with whom Simpson and Barr JJ relevantly agreed, said -
“40. The authorities make it clear that, if an application to re-open an appeal is made before the judgment dealing with the appeal has been perfected, the Court has jurisdiction to re-open its consideration of the appeal, and that denial of procedural fairness will be a ground on which the Court may take that course. However, the situation is not so clear where the application to re-open is made after the order of the Court has been perfected. Grierson is direct authority to the effect that the Court of Criminal Appeal has no jurisdiction to re-open an appeal once it has heard and determined the appeal and the order has been perfected. Jones [Jones v The Queen (1989) 166 CLR 409] suggests that this principle might not apply if a purported determination of an appeal in fact does not amount to a determination of the appeal because there has been a total failure to determine some of the grounds of the appeal. Pantorno [Pantorno v The Queen (1989) 166 CLR 466] and Postiglione [Postiglione v The Queen (1997) 189 CLR 295) suggests the possibility that there might be jurisdiction to re-open an appeal where procedural fairness has been denied. In the Court of Criminal Appeal, Lapa [R v Lapa (No 2) (1995) 80 A Crim R 398) suggests that there is no jurisdiction to re-open an appeal once the order is perfected, even where there is a denial of procedural fairness; but it could be said that that view is expressed obiter. The contrary view is expressed in Saxon [R v Saxon (1998) 101 A Crim R 71) and Gust [R v Gust [2000) NSWCCA 287) but again it could be said that the view is expressed obiter.
41. In my opinion, what was said in Jones, Pantorno and Postiglione is insufficient to displace the binding authority of Grierson to the effect, once an appeal has been heard and determined and the order perfected, there is no jurisdiction to re-open the appeal. This is subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud. However, it is to be noted that this principle applies when an appeal has been heard and determined; and leaves open the possibility that if there are grounds of appeal which are not determined at all, it could be said that the appeal has not been determined. That is a possibility adverted to by Sperling J in Saxon; but in my opinion, it is not any denial of procedural fairness which would have the result that it could be said that an appeal has not been heard and determined. In my opinion, it is only if there is some ground of appeal which was argued but not determined by the Court that one might be able to say that a purported determination does not, in relation to that ground of appeal, amount to a determination of the appeal. Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson. To that extent, I prefer the view expressed in Lapa to the contrary view expressed in Saxon and Gust.”
By perfection of the order his Honour meant the noting of the records of the court of trial in accordance with r 53 of the Criminal Appeal Rules, see at [20]-[22]. Rule 51A states that an appeal or an application for leave to appeal “is determined on the making of orders disposing of the appeal or application”. Rule 51 provides for notice of the determination to be sent to various persons. Rule 52 provides for notice to “the proper officer of the Court of Trial”, and by r 53(1) “[s]uch proper officer shall thereupon enter the particulars of such notification on the records of the Court of Trial”.
The applicant’s sentence appeal was decided on 12 December 2001. Orders were made granting leave to appeal and dismissing the appeal. The Crown said in its submissions that the orders had been perfected. The applicant did not take issue with this; on the contrary, in an affidavit sworn in relation to costs assessment in which he complained of his legal representatives’ conduct of the sentence appeal, he said that “[t]he present is a case in which the orders have been perfected, but it is submitted that a denial of natural justice has occurred because … “. The material put before the Court included a form of notice of the outcome of the sentence appeal, addressed to “CCA File No: 60022/00” and “DC File No: 98/21/2124”. There was no specific evidence of the entry of the orders on the records of the District Court, but a ready inference is that a copy of the notice was placed in the records of the District Court in the identified file.

The applicant referred to Jones v The Queen (1989) 166 CLR 409 and the other cases to which Hodgson JA referred in R v Reardon (No 2) at [40], submitting that there is jurisdiction to reopen an appeal where there had been a denial of procedural fairness and that there had been such a denial in relation to the appeal determined on 12 December 2001. At best, the appeal could be reopened if there had been failure to determine a ground of appeal which had been argued.
As will appear, the denial of procedural fairness for which the applicant contended did not involve failure to determine a ground of appeal as referred to by Hodgson JA. At one point in written submissions on reopening the sentence appeal, the applicant asserted that grounds of appeal had not been determined. This, however, took up his complaint that grounds he had instructed should be raised had not been raised; there was no failure to determine a ground of appeal which had been argued. In my opinion, R v Reardon (No 2) precludes acceptance that the appeal can be reopened.
As was done in R v Reardon (No 2), I nonetheless explain why no ground for reopening has been made out. It is again necessary to go in a little detail to the conduct of the sentence appeal.
Events to the hearing of the sentence appeal
Returning to Mr Byrne’s advice of 12 June 2000, he considered that there was a “basis for argument” that the sentence was in all the circumstances excessive. He said -
“In the comprehensive written materials with which I have been provided, materials which Mr Rae has clearly put a very considerable effort into preparing, there is some basis for coming to the view that the psychiatric evidence which was such an important feature of his case was not put before the learned sentencing Judge in as complete a form as it should have been. In the conference that I have had with Mr Rae, he raises a question regarding the incompleteness of reports prepared by Dr Westmore and Dr Parmagiani, as well as from the psychologist Ms Anita Duffy. Mr Rae’s primary complaint is that because of the unavailability of the necessary funds, these various reports were not as comprehensive in considering his full background as they might have been if more funds were available. The importance of those reports is that they may have been introduced to counter some of the adverse material contained in the report of Dr Milton which was given considerable significance in the learned sentencing Judge’s remarks on sentence. It seems to me that in all of the circumstances that now exist, Mr Rae should be entitled to obtain such further medical and psychological evidence as may be available to him and seek to have that material tendered in proceedings on an application for leave to appeal against sentence in the Court of Criminal Appeal.
…
The ultimate argument on behalf of Mr Rae in this case must be that his actions in committing the offence charged against him, actions which of themselves disclose a very high degree of criminality, were the product of a disturbed mind rather than of an inherently evil mind. The psychiatric and psychological evidence he now wants to obtain is ultimately directed towards that crucial issue. It seems to me right, having regard to the reasons given for the imposition of a sentence of such magnitude, that Mr Rae be given that opportunity. If those reports that are obtained are able to establish that at the time Mr Rae committed this offence he was suffering from a recognised medical condition, then there is some prospect that the sentence imposed upon him will accordingly be reduced. For those reasons there is, in my opinion, merit in the course now proposed, that is to say, obtaining additional medical evidence to determine whether it can be the basis of an application to challenge the sentence imposed.”
A further report dated 14 December 2000 was obtained from Dr Westmore. He did not agree with Dr Milton’s view that the applicant was not depressed at the time the offence was committed, and thought that the applicant was “suffering from a depression of some significance” at that time. He opined that the depression would not avail the applicant as a defence of mental illness, diminished responsibility or substantial impairment, but thought it was “more than the ordinary reaction of distress or upset that might usually occur following the breakdown of a relationship”. He did not think that “[t]he fact that there was premeditation” detracted from his opinion.
According to the applicant, further reports were also to be obtained from Dr Collins, Dr Parmegiani and Ms Duffy. The material included a report of Dr Collins dated 29 October 2001 with “comments on various aspects of the matter”; it seems to have been put aside by the applicant’s legal representatives as providing no worthwhile assistance to the applicant. Although the applicant wished to have it before the Court on the sentence appeal, see later, that was a readily available assessment. It is not clear what happened, if anything, about further reports of Dr Parmegiani and Ms Duffy, but the earlier report of the former and the applicant’s communication with the latter would have made any later more favourable reports of little value, and reliance on them detrimental. It may be that the applicant’s evidence is unreliable in this respect, or it may be that any proposal to obtain further reports was not taken up by his legal representatives.
In unexplained circumstances the applicant, apparently concerned with a condition of “derealisation”, directly provided further material to Dr Westmore, who wrote to Ross Hill & Associates on 5 February 2001. Dr Westmore concluded -
“His actions leading up to the incident, the incident itself and subsequently to the incident, do not however indicate that derealisation or depersonalisation, if present, were present to such a degree as to have relevance to a defence of mental illness. Those subjective experiences may have occurred, certainly one would have anticipated them occurring, but they do not amount to a defence in and of themselves.
I would again indicate that I have little doubt this man was psychologically disturbed at the time this incident occurred, I feel he was depressed and, as noted in previous reports, that that was certainly significant in how the tragedy unfolded.”
In March 2001 the applicant wrote to Mr Byrne expressing concern that, when Mr Byrne had recently seen him, Mr Byrne had been “quite pessimistic … about the prospect of introducing Dr Westmore’s report in sentencing”. The applicant expressed the view that “there wouldn’t appear to be any basis for appeal unless we get the fresh evidence in”. Mr Byrne replied by a letter in which he said the applicant may have misunderstood, and that -
“The further report which was commissioned from Dr Westmore was intended to address issues which related to the correctness of the proceedings in which you entered a plea of guilty as well as the question of sentence. Having considered what Dr Westmore has written, it seems to me that there is nothing in that report which could be used to challenge your conviction on the ground that you did not really understand the true consequences of entering a plea of guilty. There is still some prospect that it may be used on sentence. You would understand from your own researches that there are strict rules about the introduction of fresh evidence on sentence appeals. We will do our best to introduce this material but it is by no means certain that the court will permit it.”
It had apparently been intended to obtain a report from another psychiatrist, Dr Lucas. On 24 August 2001 the applicant wrote to Mr Hill instructing him not to do so, but to obtain a further report from Dr Westmore. Mr Hill arranged for the applicant to be further examined by Dr Westmore. In a letter to the applicant dated 27 August 2001 he said that the timing allowed any further report to be considered by Mr Byrne prior to filing the appellant’s submissions in the appeal. In a letter to the applicant’s mother dated 1 November 2001, dealing with funds for the lawyers, he said that it was “anticipated that we will have to call Dr Westmore to give evidence at the hearing”, and referred to Dr Westmore’s additional fees. From his letters to Mr Hill and Mr Byrne over this period, it is evident that the applicant expected that Dr Westmore would be giving evidence, by report and orally, in support of his sentence appeal.
Dr Westmore provided a further report dated 22 October 2001. He said that further documents provided to him and his re-examination did not alter the opinions in his previous reports, particularly the report of 14 December 2000, and -
“I would reaffirm my opinion that Mr Rae was suffering a significant depression of his mood state at the time the incident occurred. I do not believe he had simply a case of sadness or a normal reaction which might occur when a relationship breaks down. I would also indicate again that I do not believe he has available to him the defence of mental illness but that his depression was a significant factor in what occurred in relation to the victim.”
In a manner left unclear, the applicant became aware that Mr Byrne “now doesn’t want to tender the reports, which he requested done”; he wrote to the Attorney-General on 12 November 2001 saying this and complaining that he could not “get his case presented”.
On about 6 December 2001 written submissions signed by Mr Byrne were filed for the hearing of the sentence appeal. They appear to have been sent to and read by the applicant, who on 10 December 2001 sent a fax asking that Mr Byrne “include in” the submissions Dr Westmore’s report of 14 December 2000 and Dr Collins’ report, presumably that of 29 October 2001.
The hearing of the sentence appeal
At the hearing on 12 December 2001 there was read an affidavit of Ms Shiranica George, a solicitor from Ross Hill & Associates, annexing Dr Westmore’s reports of 14 December 2000 and 5 February 2001. The reports were “submitted for the consideration of the Court in the event that the Court is required to re-sentence the applicant”. Dr Westmore’s report of 22 October 2001 was not put before the Court, nor was Dr Collins’ report. The reports were not tendered as fresh evidence going to whether the judge’s sentencing had erred, but only as material to which regard could be had if the Court came to re-sentencing.
The Court heard Mr Byrne’s oral submissions. The Crown was not called on, and reasons were delivered ex tempore granting leave to appeal against sentence but dismissing the appeal.
In his evidence in the applications the applicant said that he intended to interrupt the proceedings when he became aware that the grounds he had instructed should be raised were not going to be raised. He plainly enough meant by this when he became aware that there was not to be reliance on fresh psychiatric evidence going to whether the judge’s sentencing had erred. He said that he was taken by surprise when the Crown was not called on and “was prevented from talking further to their Honours by the Corrective Service Officers”.
On 19 December 2001 the applicant wrote to Mr Byrne asking why he did not “argue fresh evidence upon my appeal”. Mr Byrne replied to the effect that Dr Westmore’s report did not take matters further than the sentencing judge’s acceptance that the sentence should be reduced by reason of the applicant’s mental condition at the time, and that he (Mr Byrne) considered that the strength of the application for leave to appeal lay in other directions, which he identified. The applicant sent a lengthy response on 19 February 2002, which prophetically included, “I will in all likelihood attempt to go back to the court Criminal Appeal [sic] with Dr Westmore’s evidence”.
Consideration of reopening the sentence appeal
The applicant’s principal submission was, in summary, that further psychiatric evidence was to be put before the Court as fresh evidence in the sentence appeal; that Dr Westmore’s reports, particularly that of 22 October 2001, were obtained for that purpose; that until late in 2001 he had thought that was to be done, and he instructed that it should be; that it was not done, because only the reports of 14 December 2000 and 5 February 2001 were put before the Court, and then not as fresh evidence but for consideration if it came to resentencing; and that he was thereby denied procedural fairness. To this was added that he was again denied procedural fairness when he was prevented by the officers of the Department of Corrective Services from himself addressing the Court.
On the evidence, until about early November 2001 the applicant was justified in expecting that the sentence appeal would include attempted reliance on psychiatric and psychological evidence as fresh evidence, in an endeavour to reduce the criminality of his conduct. Mr Byrne’s advice of 12 June 2000 referred to showing that the appellant’s actions were “the product of a disturbed mind rather than an inherently evil mind”, and that must have been the objective.
However, Dr Westmore’s report of 22 October 2001 did not provide material assistance to the applicant, nor did the report of Dr Collins. From the applicant’s letter to the Attorney-General, it must have been conveyed to the applicant that his legal representatives were doubtful, at the least, about the value of the reports he wished to have before the Court. Assuming in the applicant’s favour, however, that he did not understand that the sentence appeal was to be conducted without attempted reliance on psychiatric evidence (and Dr Collins’ report of 29 October 2002) as fresh evidence, there was not a denial of procedural fairness when his expectation was not fulfilled. Through his legal representatives, the applicant had full opportunity to put before the Court material for the Court’s consideration. Similarly, he had full opportunity to address the Court through his legal representatives, even if (and again I assume this in his favour) he wished himself to “talk further” to the judges and was prevented from doing so by the officers of the Department of Corrective Services: there was nothing to suggest that that Court was aware of a frustrated wish. That the applicant may not have agreed with the course taken by his legal representatives did not constitute denial of procedural fairness.
I return to grounds 12 and 13 in the document received on 7 May 2004. Ground 12 was “Insufficient preparation time for sentencing proceedings”. Ground 13 was “That Her Honour failed to hear sworn evidence from experts when determining penalty”. Under ground 12 it was submitted that the circumstances and available time were not sufficient for “robust presentation in sentencing”, and that there was a miscarriage of justice in the sentencing. Under ground 13 it was submitted in substance that the plea of guilty admitted only the essential elements of the offence, that in ascertaining the facts beyond the essential elements the judge should have required sworn evidence, and that if she had done so the opinions of Ms Duffy would have been accepted and (implicitly) the sentencing would have been on a basis more favourable to the applicant.
Neither complaint was made in the sentence appeal, and neither can be made now. In any event, the judge was entitled to act on unsworn evidence in the absence of dispute, and I am not persuaded that it was unfair to the applicant that the sentencing hearing should have continued when it did, or that Mr Stewart was in error in the manner he conducted it on behalf of the applicant. It was important in the applicant’s interests that he retain such benefit as could be gained from pleading guilty and moving on to sentencing with little delay or dispute over the facts.
The result
In my opinion, the applications should be dismissed.
HISLOP J: I agree with the judgment of Giles JA.
ROTHMAN J: I agree with Giles JA.
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LAST UPDATED: 08/11/2005