Regina v Grant Ian Mitchell

[2007] NSWDC 369

CITATION:	Regina v Grant Ian Mitchell [2007] NSWDC 369
JUDGMENT DATE:	13 December 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Application refused.
CATCHWORDS:	Criminal law - Application to reverse a plea of guilty - Child sexual assault charges - Public interest in finality of proceedings - Discretion of the presiding judge - Plea must be a free and voluntary confession with a genuine consciousness of guilt - Appellant suffering from post traumatic stress disorder after work accident - No miscarriage of justice
CASES CITED:	Regina v Hura (2001) 121 A Crim R 472 Regina v Liberti (1991) 55 A Crim R 120 Regina v Sagiv (1986) 22 A Crim R 73
PARTIES:	Regina Grant Ian Mitchell
FILE NUMBER(S):	05/21/2028
COUNSEL:	Mr Gibson for the Crown Mr Cooley for Mr Mitchell

JUDGMENT

1. This is an application by Grant Ian Mitchell to reverse a plea of guilty. The plea of guilty was entered to three charges, which I will generally describe as aggravated sexual assault. They were committed against a girl who was under sixteen, which meant that they were aggravated. When I say “they were committed” that is the allegation contained in the indictment which is part of exhibit 1.

2. Mr Mitchell was charged on 29 June 2005. The matter was listed for mention at the Local Court and he was committed for trial on 21 October 2005. After various mentions in the District Court it was listed for trial on 9 October 2006. It was stood over to 10 October 2006 in order to edit a video which had been made of the complainant, presumably for the purpose of it being played during the trial. On 10 October 2006 Mr Mitchell entered pleas of guilty to the three charges of aggravated indecent assault.

3. It is agreed that the onus rests on Mr Mitchell to satisfy me on the balance of probabilities that his application ought to be granted. The law on the topic is, both Mr Gibson who appears for the Crown and Mr Cooley who appears for Mr Mitchell agree, well settled in Regina v Sagiv (1986) 22 A Crim R 73. Mr Justice Lee, as his Honour then was, speaking on behalf of the Court of Criminal Appeal said at 80 that such an application is a matter for the discretion of the presiding judge. His Honour said that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. His Honour went onto say:

“ It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as admission of guilt the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence and is the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings. ”
(I have omitted his Honour’s references to authority.)
4. In Regina v Liberti (1991) 55 A Crim R 120, Justice Kirby when his Honour was President of the Court of Appeal, speaking on behalf of the Court of Criminal Appeal, said that such an application is approached by the courts:

“ with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all the relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence. ”

(Once again I have omitted reference to authority.)
5. Finally in Regina v Hura (2001) 121 A Crim R 472, Chief Justice Spigelman, in delivering the judgment of the Court of Criminal Appeal, emphasised that such an application will normally allege a miscarriage of justice. His Honour said at 477 - 478 that such cases are exceptional and his Honour identified a number of circumstances where such applications have been granted. Three of those circumstances were where the plea was not a free and voluntary confession, where the plea was not really attributable to a genuine consciousness of guilt and where there was mistake or other circumstances affecting the integrity of the plea as an admission of guilt.

6. In this application I have heard evidence from two expert and well qualified forensic psychiatrists, Dr Westmore and Professor Greenburgh. In addition I have evidence from Mr Mitchell’s counsel at the time of entering the plea, Mr Hoare, and I have also heard evidence from Mr Mitchell himself. There have been tendered various exhibits to which I will make reference shortly.

7. Briefly, Mr Mitchell’s evidence was that he decided to plead guilty when he did because he felt depressed and “ just wanted the matters to be over ”. He did not care what happened to him. He maintains his innocence. He related the circumstances of an industrial accident which had occurred a matter of weeks before he entered his plea. He was trapped inside a pipeline at work. It was filling with water. He entertained a genuine belief that he would die in the accident. It seriously affected his mental health. It left him with post traumatic stress disorder.

8. In an affidavit filed by him he sought the leave of the court to reverse his plea on three bases: that he did not enter his plea on a free and voluntary basis because of his symptoms of post traumatic stress disorder; that he did not and does not hold a genuine consciousness of guilt; and that he maintained his dispute with the allegation up until the plea.

9. I omitted to mention that there was also evidence in the form of a report from a psychologist Mr Probets, who saw Mr Mitchell. Briefly Mr Probets was of the opinion that Mr Mitchell was, as a result of his accident, suffering post traumatic stress disorder which brought about extremely severe levels of anxiety and depression. He was of the opinion that Mr Mitchell would have lacked the capacity to fully discern the consequences of pleading guilty. He said that people with such a condition often approach decisions such as this with the attitude of wanting to get it over and done with. He thought Mr Mitchell was extremely unlikely to have pleaded guilty had the accident not occurred.

10. Dr Westmore diagnosed an acute stress disorder which has become a chronic post traumatic stress disorder. That diagnosis was based upon the history given of the work accident. He also diagnosed anxiety, depression and intermittent panic attacks. The conditions were likely to have affected his judgment at the time he entered the plea. Dr Westmore also regarded the phenomenon of “wanting it all over with” regardless of the outcome, as being not uncommon with patients suffering from anxiety and depression. He thought it possible, probably likely, that something similar occurred in this case, particularly, he said, if Mr Mitchell maintained his innocence strongly up until that point.

11. Dr Greenburgh was of the view that Mr Mitchell had symptoms consistent with post traumatic stress disorder, anxiety and depression, but he took issue with whether they were extremely severe. He saw no marked deterioration in functioning which would justify such a conclusion. He was of the view that Mr Mitchell did not lack the capacity to enter his plea of guilty. The symptoms were not so severe that he required hospitalisation or lacked the capacity to reason or have insight. He was of the opinion that Mr Mitchell had adequate capacity with his mental and cognitive ability to make a reasoned decision at the time of the plea. He thought Mr Mitchell’s judgment or choices may have been influenced by his mental state but not his capacity.

12. As I said, both doctors gave evidence. Dr Westmore in cross-examination agreed with Dr Greenburgh that Mr Mitchell’s ability to make judgments and choices was impaired by his illness. He also agreed with Dr Greenburgh that Mr Mitchell did understand the consequences of pleading guilty at the time. He classified Mr Mitchell’s post traumatic stress disorder as in the moderate range rather than extreme.

13. Mr Hoare gave evidence of the circumstances of accepting the plea. It is important to note here that Mr Cooley makes no suggestion of any impropriety whatsoever on behalf of Mr Hoare. Mr Hoare described Mr Mitchell taking time to think about the decision as to whether to change his plea or not. He recalled that he went away and came back some time later. He recalled Mr Mitchell taking issue with an item in the agreed facts which is part of the process he was asked to sign. That item concerned an allegation that sexually offensive behaviour had occurred on occasions other than the occasion of the offences in question. Mr Mitchell wanted that removed but after negotiation that application was unsuccessful. Mr Hoare thought that Mr Mitchell came back after about an hour. He agreed that he wanted to proceed with his plea. He thought that Mr Mitchell was stressed but no more than many people at the time of facing their trial and was not unduly agitated. Mr Hoare never told his client that if he pleaded guilty he would not go to gaol, nor did he say that the Crown would not oppose a non-custodial order because of the work accident.

14. Mr Mitchell’s evidence supplemented his affidavit. Asked about his state of mind on 9 October 2006, the day before he changed his plea, he said that he was in various states of mind. He was fed up, he had had enough, his own health and existence were severely affected. He wanted the case over and done with and finalised. He felt that he had given up and did not care whether he went to gaol or not.

15. I turn now to the balance of exhibit 1 which to my mind is very important in determining this case. Exhibit 1 comprises a series of documents which roughly came into existence at the time of the change in plea. Document 3 in exhibit 1 is a signed acknowledgement by Mr Mitchell dated 10 October 2006, saying that he wished to enter a plea of guilty to the charges and he accepted that “ I have committed the acts alleged ”. It acknowledges the possibility of a full time gaol sentence and that the decision is made of his own freewill.

16. Document 4 is also signed by Mr Mitchell. It is a document called “Agreed Facts on Sentence”. Those facts include the following: the offender and the victim got into bed; they were both naked; Mr Mitchell rubbed the victim on her chest; he spoke about his penis; he touched the victim on the outside of her vagina. It also included a passage saying that the victim stated that this was not the first time that she had been assaulted by Mr Mitchell but that it had occurred some 20 times over the last four or five years.

17. Document 5, also dated 10 October 2006, were notes prepared by Mr Hoare’s instructing solicitor. The notes were made at the time of the conference with Mr Mitchell to obtain his instructions. The notes summarise the exchanges which occurred in that conference. It included this passage: “ You must be prepared to say ‘I have done these offences’ .” “ Admission of guilt. ” It makes reference to a gaol term. It makes reference to the fact that Mr Mitchell can have time to speak to anyone or to have coffee. It notes that Mitchell, at 10.30am, went to make some phone calls. It also notes that at 11.15 the pleas of guilty were entered in court and the matter adjourned to 8 December 2006.

18. Document 6 is a letter from Mr Hoare to his instructing solicitor. It notes Mr Mitchell’s approval of the signed copy of the agreed facts. It makes reference to the work event and suggests the obtaining of psychological and psychiatric evidence for the sentence proceedings.

19. Another document in exhibit 1 is a report from a psychologist called Julie Lefranc. She saw Mr Mitchell on 18 November 2006 and 2 December 2006. She notes in her history that:

“ Mr Mitchell reported that the offence took place on or about 21 March 2005 when he indecently assaulted [the victim] (a ten year old girl) at his home at Silverdale. ”

It contains an account, in some detail, of what happened, including him having a few drinks and having a shower and that the young victim came to his room at about 11.30pm after her shower. It said that they hopped into bed together. It said then,

“ Mr Mitchell reported that that night he touched her on the vagina. He said that he fell asleep and the next morning whilst he remembered touching her nothing was said. Mr Mitchell reported that he took [the victim] to work with him [the victim’s mother] picked [the victim] up and took her home. He said nothing was said about the incident until October 2005. Mr Mitchell denied touching the victim in the past and said “with [the victim] I abused her trust.” [The psychologist expressed the opinion] that “Mr Mitchell feels shamed by his behaviour and regrets touching[the victim] on the night of 21 March 2005. He reported that whilst he had been drinking, his drinking did not excuse his behaviour and said that he felt remorseful for abusing her trust. ”

20. Document 8 is a presentence report dated 4 December 2006 prepared for the sitting of the court on 8 December 2006 to which the proceedings had been adjourned. The author of the report David Moffitt said that:

“Mr Mitchell has agreed, somewhat reluctantly with the police facts. He described that it was an unfortunate series of events and it was ‘a stupid thing to do’. He has attended two sessions with a specialist forensic psychologist to begin to address his offending behaviour.”


It further said that Mr Mitchell, “ acknowledges the consequences of his behaviour on himself and his family. ”

21. By a further handwritten document, numbered 9 in exhibit 1, signed by Mr Mitchell and dated 8 December 2006, he confirmed his earlier instructions that he wished to maintain his pleas of guilty. He also confirmed the agreed statement of facts that were to be tendered and which he signed on 10 October 2006. He also acknowledged that the sentence will be deferred for the medical reports.

22. I have no reservation in accepting the documents which I have just referred to, which are part of exhibit 1, as all being authentic, indeed there was no challenge to their authenticity.

23. Mr Cooley’s argument in support of his client rests on a number of submissions. One is the chronology of events which demonstrates a relatively short period of time in weeks from the work accident to the entry of the plea of guilty. It was, as he said, a short timeframe. A second submission acknowledges the common ground that Mr Mitchell’s judgment had been affected by the accident. I say “common ground” because both psychiatrists agreed. He acknowledged that there was no evidence before me of Mr Mitchell strongly maintaining his innocence which was a factor referred to by Dr Westmore. It said that the integrity of the plea in this case was affected by the diagnosis which was common ground and the impact of the diagnosis on Mr Mitchell’s judgment. There was, as Mr Cooley said, a concrete basis for the assertion that something was not right. The integrity of the plea was therefore affected.

24. I have determined to reject those arguments and to reject the application. Briefly I am of the view, so far as Mr Mitchell’s bases in his affidavit are concerned, that he did enter his plea on a free and voluntary basis, although suffering from the effects of post traumatic stress disorder. There can be no doubt from the documents that he signed on 10 October 2006, in circumstances where he had time to reflect and make phone-calls, that his plea was free and voluntary. Not only that, but the admissions of guilt since then to the psychologist and probation officer confirmed that. He maintained his plea of guilt for some months afterwards. I reject his argument that he does not hold a genuine consciousness of guilt, whereas I might have had a reservation had the evidence been limited to the events on 10 October 2006. His behaviour over the months following that leaves me with no doubt that he entertained a genuine consciousness of guilt. He admitted details of the offences to the psychologists. He expressed remorse and contrition. He took steps to have what he saw as the reason for his behaviour treated. I accept that he maintained his dispute with the allegation up to 10 October 2006.

25. I see the force of Mr Cooley’s argument concerning the sequence of events. It was by the sounds of it an horrific accident. I have no doubt that it had the impact which the psychiatrists claim. It also, no doubt, affected Mr Mitchell’s judgment, but whether that impact was such that it gave rise to a miscarriage of justice is another matter altogether. People who make decisions are affected by all sorts of matters which can cause stress. Some of them may be psychological and others physical. Making decisions under stress is not unusual. This is an illustration of someone who was making a very serious decision under stress, the stress partly unrelated to the nature of the decision and caused by a work accident. Nevertheless, the evidence points clearly, in my opinion, to the fact that Mr Mitchell understood what he was doing in pleading guilty. Not only that, but he maintained that plea and went further to express remorse and contrition over the next few months.

26. I do not regard the psychological and psychiatric evidence of post traumatic stress disorder as affecting the integrity of the plea such as to give rise to the risk of a miscarriage of justice. As I said, it had an impact upon him. It may have affected his judgment, but I have no doubt that he knew what he was doing and did what he did through a genuine consciousness of guilt.

27. As Justice Kirby said, I must approach this application with caution bordering on circumspection. Mr Mitchell has taken the solemn step of pleading guilty before a court to three charges which, as the authorities say, amounts to an admission by him of the necessary legal ingredients of the offence or offences in this case. He has confirmed those pleas over the following few months. There is, as Justice Kirby said, a high public interest in the finality of these proceedings.

28. I do not see any miscarriage of justice involved in refusing Mr Mitchell the opportunity to withdraw his plea and I therefore reject the application.

oOo