R v Walkuski - [2007] SADC 121

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WALKUSKI
[2007] SADC 121
Reasons for Decision of His Honour Judge Rice
9 November 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Applicant charged with six counts of rape - originally intended to plead "not guilty" - shortly before the date fixed for the commencement of the trial, he sustained a head injury - trial adjourned - injury said to have caused loss of memory - again listed for trial - pleaded guilty after signing two sets of written instructions - claimed memory now returned such that he has a defence, namely, that he believed the complainant was consenting and that she did consent - application to withdraw pleas.
Held: application refused - claim that memory lost and now regained rejected - accepted sound advice to plead guilty - genuinely accepted he was guilty - signed instructions not brought about by pressure or confusion.
R v Brooks and Childs (2006) 95 SASR 369; R v Pugh (2005) 158 A Crim R 302; R v Brooks (2007) 96 SASR 478; R v Hura (2001) 121 A Crim R 472 at 478; Maxwell v The Queen (1995-6) 184 CLR 501; R v Clayton (1984) 35 SASR 232 at 234, considered.

R v WALKUSKI
[2007] SADC 121
Introduction

This is an application to withdraw pleas of guilty to six charges of rape. The history of the matter is referred to in some detail below, but the essence of the application is this. The accused originally pleaded “not guilty” to these charges and intended that they go to trial. A couple of days before the trial was due to commence, the applicant sustained a closed head injury that was said to have resulted in a loss of memory of the relevant events. After some time spent in rehabilitation, various reports were obtained and the applicant was found fit to stand trial.
Subsequently, at a time when it was said he still had no memory of the relevant events, the applicant changed his plea to guilty on all charges. Later again, his memory of the relevant events was said to have returned such that he would have a defence to the charges relating to a belief in her consent and her consent. He now wishes to contest the charges. He applies to withdraw his pleas of guilty.
Principles to be applied
It is clear that a Judge has a discretion to allow a defendant to withdraw a guilty plea at any time before sentence: R v Brooks and Childs[1].
[1] (2006) 95 SASR 369 per Bleby J (para 14)
The principles in this area have been discussed in the recent cases of R v Pugh[2], in Brooks’ case (supra) per Bleby J and on appeal in R v Brooks[3].
[2] (2005) 158 A Crim R 302
[3] (2007) 96 SASR 478
The ultimate question in relation to the withdrawal by a defendant of a plea of guilty is whether there would be a miscarriage of justice if the plea were allowed to stand: Pugh (at 32-33) and Brooks (at 6). Bleby J in Brooks and Childs (at [41]) referred to R v Hura[4], where Spigelman CJ listed some of the factors which may require a trial Judge to allow a defendant to withdraw a plea. Those factors were:
•where the defendant did not appreciate the nature of the charge to which the plea was entered;
•where the plea was not a free and voluntary confession;
•where the plea was not really attributable to a genuine consciousness of guilt;
•where there was mistake or other circumstances affecting the integrity of the plea as an admission of guilt;
•where the plea was induced by threats or other impropriety when the defendant would not otherwise have pleaded guilty;
•where the plea is not unequivocal or made in circumstances suggesting it is not a true admission of guilt; and
•where the defendant who entered the plea was not in full possession of all of the facts and did not entertain a genuine consciousness of guilt.
[4] (2001) 121 A Crim R 472 at 478
From this list it can be seen that there are essentially two broad categories of factors which may be cited by a defendant in an application to withdraw a plea of guilty. They are:
•fundamental error on the part of the defendant as to the nature of the plea entered, the charges faced or the circumstances of the case; and
•an absence of genuine consciousness of guilt. This factor was described as relevant but not decisive by Doyle CJ in Pugh (at [40]).
Doyle CJ stated in Pugh and reiterated in Brooks that a defendant may be held to a guilty plea where that plea is made “upon grounds that extend beyond that person’s belief in his guilt”. This simply acknowledges that there may be any number of reasons for which a defendant may enter a plea of guilty to an offence. So long as the defendant understands the nature of the charges and the plea, is not placed under any improper pressure etc, and the plea is entered out of a genuine consciousness of guilt, it does not matter what other factors may have influenced the defendant to enter a guilty plea.
In summarising the application to withdraw a guilty plea in Brooks, Doyle CJ stated (at [84]):
This is nothing more than a case of an accused person who has pleaded guilty, but on reflection has realised that there is a possible view of the facts on which a jury might acquit. But that cannot detract from the effect of the admission of guilt, having regard to the circumstances under which that admission was made.
This is consistent with Maxwell v The Queen[5] in which Dawson and McHugh JJ stated that a plea of guilty constitutes an admission by the defendant of all elements of the offence.
[5] (1995-6) 184 CLR 501
Onus
It is the defendant who bears the burden of demonstrating to the Court that a miscarriage of justice would result if the plea could not be withdrawn (R v Clayton[6]). Those factors listed above identified by Spigelman CJ can all be seen to be species of miscarriage of justice.
[6] (1984) 35 SASR 232 at 234 per Wells J
Background facts
The circumstances giving rise to this application need to be referred to in some detail. In addition to that, the nature of the evidence proposed to be led by the prosecution needs explanation because it is said that the complainant was unconscious at the time of these alleged acts.
The accused is charged with six counts of rape alleging the offending took place between 1 July, 2001 and 1 December, 2001 at Salisbury North.
On 18 September, 2002, the police searched the home of the accused using a General Search Warrant. They were searching for a videotape depicting an unrelated offence allegedly involving the accused. When undertaking this search, the police located a tape showing a sleeping Aboriginal woman in a state of undress. The tape shows six incidents of rape by the insertion of fingers and then various objects into the vagina of this woman. I have viewed the tape for the purposes of this application. It is clear that the complainant is asleep or unconscious throughout these events. (The complainant surmises that she was drugged before it happened.) In any event, the complainant says that she did not consent to these acts of sexual intercourse or the taking of the video. She says she knew nothing of the video until it was shown to her by the police in late September, 2002.
The accused is able to be identified in the video by the presence of a faded tattoo of a dollar sign between the thumb and forefinger. Further, the surroundings in the room where the video was taken match a room in the accused’s house. Objects used in the video were seized from the accused’s house.
The accused was spoken to by the police. Although he did not wish to answer most police questions, he did deny that he committed any rape. He was advised that the police had earlier seized a videotape that was relevant to the investigations, but it is not clear that he was aware of the type of sexual intercourse alleged here.
The accused was committed for trial on 12 March, 2003 and first appeared in the District Court on 14 April, 2003 and pleaded “not guilty”. By a Notice and Election signed on 27 May, 2003, the accused elected for trial by Judge alone. He was then represented by Mr Ey. On 12 August, 2003 the trial was listed to commence on 9 February, 2004.
When the matter came on for trial on 9 February, 2004, the Court was advised that, on 7th February, the accused had fallen from a ladder and was in the Lyell McEwin Hospital. The trial dates were vacated on 10 February, 2004.
When the matter was next before the Court for a directions hearing on 24 February, the Court was advised that the accused had lost all memory. Over the following months various reports were received relating to the accused’s condition. On 10 August, 2004, the Court ordered a report from Mr Mark Reid, neuro-psychologist, as to the accused’s fitness to stand trial. By a report dated 8 September, 2004, Mr Reid expressed the opinion that the accused was mentally fit to stand trial. Mr Reid was not able to carry out a full neuro-psychological examination, but some testing was possible before the accused cited the development of acute and severe headaches. As part of his summary, Mr Reid said this:
I carried out an abbreviated neuropsychological examination due to the development of non-compliance in the context of an alleged severe headache by Mr. Walkuski. The results of this abbreviated examination did not reveal any major difficulties with speech and language functions, new learning and short term memory skills were noted to be consistent with an average level of performance, but on a test of potential memory malingering his performance was unusual and well below the expected level, raising doubts about the validity of his performance on any such tests. I was advised by Mr. Walkuski that he had also been seen and examined by a colleague, Dr. Michael Wood, on several occasions and he also carried out numerous tests of memory. With Mr. Walkuski’s written permission, I contacted Dr. Wood who has advised me via telephone that he has also been unable to conduct any form of thorough examination of Mr. Walkuski due to claims of various physical problems, including headaches.
I should point out that there are a number of unusual features in his presentation. It is very unusual for a person to have a substantial loss of long term memories or remote memories, except in cases of very extreme head and brain trauma. It is even more unusual for such long term memories which are well entrenched, such as twelve years in a particular occupation, not to be resurrected with the assistance of prompts or reminders including photographs.
Whilst acknowledging that the tests undertaken were not complete, I interpret Mr Reid’s comments as leaving a question mark over the accused’s suggested memory loss. The view was also expressed that he was suffering from clinical depression.
On 30 November, 2004, a further trial date was fixed for 5 September, 2005. The accused entered a plea of guilty to all charges on 5 September, 2005.
Events leading up to pleas of guilty
The circumstances leading up to the entry of the guilty pleas is important. As mentioned, the trial was due to commence on 5 September, 2005. Mr Cocchiaro of the firm of solicitors, Mangan Ey, briefed Mr W.P. Boucaut, of counsel, to conduct the trial.
On 31 August, 2005, Mr Boucaut and Mr Cocchiaro had a conference with the accused concerning the upcoming trial. Mr Cocchiaro gave evidence before me as to what was said and what happened at that conference and on the morning of the pleas. Mr Cocchiaro was called on behalf of the accused. The accused filed an affidavit in support of his present application and gave evidence before me. There are some important differences between the accused’s account of those events and Mr Cocchiaro’s evidence in that regard. I have considered all of that evidence. I do not traverse the competing accounts but make these findings.
I find that the accused told Mr Cocchiaro that he would plead guilty even though he could not remember the circumstances surrounding the events depicted in the video (TP25). After watching the video, the accused accepted the advice that the complainant did not consent to the acts of sexual intercourse. The advice given by counsel may have been firm, but there was certainly no coercion. The accused freely accepted the advice. He made a conscious decision to plead guilty. He was made aware it was a strong case against him. He was made aware of the discount upon a plea of guilty. I completely reject the evidence of the accused that he was tricked or talked into it (TP17, 19-20, 29). I reject the evidence of the accused that he was querying why he should plead guilty when he had not done anything. Further, I do not consider there was any misunderstanding on the part of the accused. He knew the legal and factual nature of the offences to which he was intending to plead guilty and knew and accepted that he would be sent to gaol.
The accused’s instructions to plead were reduced to handwriting and signed by the accused and Mr Cocchiaro. The text of these signed instructions is as follows:
I Frederick Walkuski instruct my lawyers I will plead guilty to various counts of rape. In so instructing my lawyers I accept I will be sent to gaol for this. Whilst I cannot remember the lady or the circumstances surrounding the offences I accept that it is my hand which is depicted in the video and that the lady was not consenting because she is apparently not conscious. I accept I must have known she was not consenting in the circumstances. I know the decision as to whether I put the Crown to proof is mine. I do not wish to embarrass the lady. I shall plead guilty.
Signed: Fred Walkuski Signed: Gino Cocchiaro
Dated: 31.8.05
The accused’s written instructions did not end with exhibit D1. On the day of the entry of the pleas themselves, confirmatory signed instructions were obtained. Before coming to those instructions, I mention some of the evidence of the accused about his thought processes after the conference with counsel and Mr Cocchiaro.
The accused gave evidence that, after the conference, he sat outside in his car for a long time. He said he was confused and was wondering what he had done when he said he would plead guilty. He said that when in his car he realised that to have signed the instructions was “the wrong thing” because he was confused and pressured (TP20, 29, 31-37). Despite the matter playing on his mind and feeling angry and upset, he did not go back and revoke his instructions. Indeed, as mentioned, he signed instructions confirming his intention to plead guilty. I make it plain that I reject the evidence of the accused that he thought he had done “the wrong thing”.
As to his later typed instructions, Mr Cocchiaro said he prepared a typed document similar to, but not the same as, exhibit D1. He said it was signed at the offices of Mangan Ey, solicitors, prior to going to Court on the morning of Monday, 5 September, 2005. The terms of that document, exhibit P2 (voir dire), are also reproduced:
INSTRUCTIONS
I, FREDERICK WALKUSKI instruct my lawyers that I will plead guilty to various counts of rape.
In so instructing my lawyers I accept that I will be sent to gaol for this. I have been advised I will be given a head sentence and non parole period and that these could be for a substantial length of time. I also acknowledge that I will receive discount from my penalty for entering pleas of guilty.
Whilst I cannot remember the lady or the circumstances surrounding the offences, I accept that it is my hand which is depicted in the video and that the lady was not consenting because she is apparently not conscious. I accept I must have known she was not consenting in the circumstances.
I know the decision as to whether I put the Crown to proof is mine.
I do not wish to embarrass the lady.
I shall plead guilty.
DATED the 5 day of September 2005
(Signed)
FREDERICK WALKUSKI
(Signed)
Witnessed by GINO COCCHIARO
Mr Boucaut appeared upon the pleas of guilty being entered. The matter was put off to pursue some outstanding medical issues. I note at this stage that Mr Boucaut, after arraignment, made a broad submission that (on his instructions) the accused “...has no memory of the offences and that whilst there is a medical history, there doesn’t appear to be any apparent reason as to why there is this lack of memory.”
Thereafter, the matter was adjourned from time to time because of a number of suicide attempts by the accused. He was under extended psychiatric care in the Adelaide Clinic and various public hospitals.
Mr Ey made submissions on 24 May, 2006, although they were unable to be completed because he made a submission that there was a relationship between the victim and the accused for a number of months before the offending. Further, he said the victim had stayed over previously. This was a matter upon which the prosecution needed to get instructions because it was contrary to the victim’s declaration. The submissions made by Mr Ey included reading from a letter prepared by the accused whereby he acknowledged his offending and expressed contrition and remorse.
Then, on 6 June, 2006, Mr Ey was given leave to withdraw because he was in receipt of instructions from the accused that made it untenable for him to continue to act. Although Mr Ey did not say what the additional instructions were, it is plain that the accused had given instructions that he could now remember she consented to the acts (or he believed she consented).
Application to withdraw the pleas
Mr Caldicott was available to take over the file. On 28 June, 2006 an application was filed to set aside the guilty pleas upon the basis:
That Mr Walkuski is not guilty of the charges by reason of the fact he was of the belief she was either consenting or thought that she was consenting.
The affidavit in support asserts that, after working with Dr David Ash, a psychiatrist, the memory of the applicant has improved such that he now believes the complainant was consenting (paras 11, 13-14, 16). I note that the applicant asserts that he was “always” of the belief she was consenting (paras 13 and 16). Further, that he has always been of that belief “...as far as my memory is concerned...” (para 16). The applicant also claims that he was confused and did not fully understand what was being said at the conference with counsel and Mr Cocchiaro (para 11).
The applicant called Dr Ash as part of the application. Dr Ash first saw the applicant on 6 June, 2005, that is, well after the head injury (on 7 February, 2004) and a few months before the actual pleas of guilty (on 5 September, 2005). The referral was for depression, pain and memory loss following an alleged accident at work. Apart from reports from the Lyell McEwin Hospital, Dr Ash obtained the reports of two neuro-psychologists, Mr Michael Wood and Mr Mark Reid. Dr Ash saw the applicant about every four to six weeks up until 8 June, 2007. There were some periods of admissions to psychiatric institutions for anxiety, depression, suicidal ideation, chronic pain and memory loss.
As Dr Ash noted in his report of 2 September, 2005, the applicant claimed to have no memory of the events alleged by the prosecution. He said the cause of his memory loss is uncertain. He had also noted the following earlier in the same report:
The available history suggests that he sustained a closed head injury in the accident on 7th February 2004, although this does not appear to have been severe enough to warrant the current level of disability. The pattern of the memory loss is rather unusual, as commented on by Mr Mark Reid.

In Dr Ash’s opinion, the applicant’s symptoms were suggestive of an Adjustment Disorder with Depression and Anxiety. There was also the possibility of a Major Depressive Disorder. Dr Ash’s report of 22 November, 2005 reiterates those findings.
Dr Ash’s report of 23rd March, 2006, covered, in part, a deterioration in the applicant’s mental state requiring psychiatric hospital admissions and intensive outpatient support. Of particular relevance to this application, the applicant reported improvement in his memory inconsistent with the charges that had been laid against him.
In evidence, Dr Ash said he reached the conclusion that the closed head injury and the psychiatric condition could have contributed to the memory problems, although he was not convinced that that in itself was quite enough to explain his presentation (TP7). He presented with a greater memory loss than the doctor would have expected (TP15, 18).
Dr Ash said that the initial presentation was of profound long-term memory loss, for events that went back many years. Dr Ash said he “...found evidence of impaired attention, concentration and short-term memory which are not inconsistent with anxiety and depression and are not inconsistent with the effects of his head injury” (TP16). He did acknowledge, however, that he had to rely upon the history given by the applicant so far as long-term memory loss was concerned. Dr Ash also interpreted Mr Mark Reid’s conclusions as questioning the applicant’s performance on cognitive testing, particularly tests of memory function. Dr Ash was referring to long-term memory loss as memories in the months and years prior to the alleged injury. Short-term memory is the acquisition of new memories and being able to retain new memories as new experiences come along.
Discussion and conclusion
The applicant’s case for the guilty pleas to be set aside very much rests on his claim that he has now regained sufficient memory to say he believes the complainant was consenting. I do not accept that he lost the memory of the events surrounding these offences and now that memory has been regained. I find that his memory has been substantially unaffected by the head injury sustained in February, 2004. Certainly his memory of the events surrounding these offences has been substantially the same at all stages.
In my view, this is one of those cases where an offender has decided to accept sound advice and has decided to plead guilty. I find that he did so in the full knowledge of the ingredients of the offence and any potential defence that he could make. He pleaded guilty because he genuinely accepted he was guilty, even though he did not have a comprehensive memory of the relevant events. Particularly, I do not accept that he now has a revived memory about his belief in the victim’s consent or that she was in fact consenting.
Particularly damning from the applicant’s viewpoint were the two lots of instructions he read and signed. As to the first of those signed instructions, I reject the suggestion by him that he was confused and pressured. He had ample opportunity to voice any concerns about the first signed instructions before and at the time the second was signed. After all, upon signing the second lot of instructions, he was due to appear before the Court to enter the pleas in the knowledge that gaol was virtually certain.
In my view, there would not be a miscarriage of justice if the pleas are allowed to stand.
I dismiss the application.