The State of Western Australia v Randall - [2024] WADC 15

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- RANDALL [2024] WADC 15
CORAM:   HERRON DCJ
HEARD:   7-8 MARCH 2024
DELIVERED          :   15 MARCH 2024
PUBLISHED           :   20 MARCH 2024
FILE NO/S:   IND 936 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
ASHLEY DAVYD RANDALL

Catchwords:

Application to withdraw pleas of guilty - Pleas of guilty entered to five counts of domestic violence at hearing to pre-record the evidence of the complainant - Plea of not guilty entered to one count of aggravated sexual penetration without consent - Verdict of guilty entered after trial - Evidence of convictions relied on as background relationship evidence at trial - After conviction the applicant applied to withdraw his pleas of guilty

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

The State of Western Australia	:	Mr B E F Tooker
Accused	:	Mr A I W Watson

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Liberty Legal Barristers & Solicitors

Case(s) referred to in decision(s):

Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Snook v The State of Western Australia [No 2] [2015] WASCA 29

HERRON DCJ:

Introduction

On 15 March 2024 I delivered brief oral reasons dismissing the application. I said I would publish full written reasons for decision later. These are my written reasons for decision.
By indictment 936 of 2021 dated 18 March 2022, Mr Randall is charged with six counts of domestic violence against AB. Count 2 is an allegation Mr Randall sexually penetrated AB without her consent when he was in a family relationship with AB.
At a hearing before Massey DCJ on 30 September 2022 to pre‑record the evidence of AB, his then counsel Mr David McKenzie, informed the judge there had been a change of position by Mr Randall and he intended to plead guilty to counts 1 and 3 - 6 but maintain a plea of not guilty to count 2.[1] Thereafter Mr Randall was arraigned on each count on the indictment pleading guilty to counts 1 and 3 - 6 and not guilty to count 2.[2] After inquiring of defence counsel whether there was any difficulty with judgments of conviction being entered and after he was advised there was not, Massey DCJ entered judgments of conviction in respect of counts 1, 3, 4, 5 and 6.
[1] ts 79.
[2] ts 79 - ts 81.
After a brief adjournment to allow the prosecutor to speak to AB and confirm that the State intended to proceed with its case against Mr Randall in relation to count 2, the hearing to pre-record the evidence of AB proceeded, taking the rest of the day.
By application dated 15 November 2023, Mr Randall applies to withdraw his pleas of guilty and set aside the judgments of conviction.

Evidence

In support of the application, Mr Randall (the applicant) has filed two affidavits sworn by him dated 1 November and 29 November 2023.
Affidavits sworn or affirmed by counsel who have previously acted for Mr Randall have also been filed. I have before me an affidavit sworn by Ms Zoe Gilders on 4 December 2023. Ms Gilders acted for Mr Randall from late March 2021 to late March 2022 when she was granted leave to cease to act for Mr Randall.
I also have before me an affidavit affirmed by Mr Aidan Kraus on 28 November 2023. Mr Kraus acted for the applicant on instructions from Ms Gilders, initially in an application for bail before Bowden DCJ on 7 December 2021 and then in March 2022 when the matter was initially listed for trial.
Finally, I have before me an affidavit by the applicant's counsel, Mr McKenzie when the pleas of guilty were entered and the judgments of conviction were recorded, sworn on 8 February 2024.
Further, I have received a written outline of submissions signed by the applicant's current counsel Mr Watson dated 2 November 2023. I have also received a written outline of submissions filed by the State dated 9 November 2023. I have also had regard to an amended statement of material facts dated 3 August 2021 (amended SOMF) and a revised amended SOMF filed on 14 June 2023.

Procedural history

I generally adopt pars 2 - 15 of the State's written outline of submissions regarding the procedural history leading up to Mr Randall's application to withdraw his pleas of guilty, but also include mention of a bail application.
On 26 May 2021 the applicant was committed for trial to the Perth District Court on the following five charges:
•PE 11488/20: With intent to harm, did an act which resulted in bodily harm
•PE 11489/20: Deprivation of liberty
•PE 11490/20: Robbery
•PE 11494/20: Assault occasioning bodily harm
•PE 11495/20: Threat to kill
By indictment dated 4 August 2021 the State of Western Australia charged the applicant with seven offences, namely:
•Count 1: Assault occasioning bodily harm (ex officio)
•Count 2: Aggravated sexual penetration without consent (ex officio)
•Count 3: Aggravated sexual penetration without consent (ex officio)
•Count 4: Deprivation of liberty (PE 11489/20)
•Count 5: Robbery (PE 11490/20)
•Count 6: With intent to harm, did an act which resulted in bodily harm (PE 11488/20)
•Count 7: Threat to kill (PE 11495/20)
The indictment was filed on 4 August 2021, together with a comprehensive amended SOMF.
The State discontinued a single count of assault occasioning bodily harm (PE 11494/20).
At a trial listing hearing on 20 August 2021 the prosecution was listed for a five-day trial commencing on 21 March 2022.
The applicant's application for bail was dismissed on 7 December 2021. During the hearing of the application for bail Bowden DCJ summarised each count on the then seven-count indictment and the factual circumstances alleged by the State in relation to each count.
On 17 March 2022 the complainant, AB, signed a new statement: Brief 237-252. As a consequence, the State discontinued what was count 3 on the indictment dated 4 August 2021.
On 18 March 2022 at 1.30 pm the State lodged (by email) a notice of discontinuance for count 3 and a new six-count indictment dated 18 March 2022.
On 18 March 2022 at 2.30 pm the applicant submitted a plea offer (by email) through his counsel, Mr Kraus. The offer was to plead guilty to all charges except count 2.
On 18 March 2022 at 4.12 pm the State (by email) declined to accept the applicant's plea offer.
On 21 March 2022 the applicant appeared in the District Court for his trial. He was then represented by Mr Kraus. Mr Kraus indicated that his client would plead guilty to counts 4, 5 and 6, and proceed to trial on the other counts. The court then adjourned to await the arrival of a jury panel. When the court reconvened Mr Kraus advised the court that his client now wanted to plead not guilty to all counts on the indictment. In the circumstances, Mr Kraus applied for leave to withdraw. Ultimately, he was granted that leave and the trial dates were vacated. A pre‑recording of the complainant's evidence was set down for 12 May 2022 and the trial was relisted to commence on 6 June 2023.
The pre-recording was subsequently administratively moved to 30 September 2022 due to the prosecutor contracting COVID‑19.
On 30 September 2022 the applicant appeared in the Perth District Court and was represented by Mr McKenzie. He pleaded guilty to counts 1, 3, 4, 5 and 6 and judgments of conviction were entered. He pleaded not guilty to count 2.
The trial in relation to count 2 proceeded in the Perth District Court on 6 ‑ 9 June 2023. The jury found the applicant guilty. The prosecution was adjourned for a sentencing hearing on 1 September 2023.
At the hearing on 1 September 2023 Mr McKenzie advised the court that his client wished to change his pleas in relation to counts 1, 3, 4, 5 and 6.

The law

The principles to be applied in determining this application are not in issue. They are usefully summarised in Birch v The State of Western Australia:[3]
[3] Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454 [170] - [177] (Birch).
170Before considering s 99 CPA, it is useful to articulate some fundamental common law principles about the effect of a plea of guilty.
171A valid plea of guilty will constitute an admission of all of the elements of the offence: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J) and Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 510 (Dawson & McHugh JJ). It follows that a guilty plea necessarily involves an admission of all of the essential facts of the offence and negatives all defences: Law v The State of Western Australia [2009] WASCA 193 [27] (Buss JA, with whom McLure & Pullin JJA agreed).
172To be valid, the plea must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. If it appears that, for whatever reason, a plea of guilty is not genuine, a judge must obtain an unequivocal plea or direct that a plea of not guilty be entered: Maxwell (511).
173A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt: Meissner (157). For example, a person may have an arguable defence, but nevertheless plead guilty. Of itself, the existence of such a circumstance does not invalidate the plea.
174Once a plea of guilty is entered and a conviction is recorded, a sentencer has a discretion to allow a change of plea to not guilty up until sentence is pronounced if the person establishes that there has been a miscarriage of justice. However, once a plea of guilty is entered and a conviction has been recorded, the approach to an application to change the plea is, as Kirby P put it in Liberti v The Queen (1991) 55 A Crim R 120, 122, one of 'caution bordering upon circumspection'. This is because of the public interest in the finality of proceedings and, as I have said, a plea of guilty is taken to be an admission of the elements of the offence: Liberti (122).
175This principle of restraint has been applied in many cases decided by this court and its predecessor, including Borsa v The Queen [2003] WASCA 254 [20] (Steytler J); Windie v The State of Western Australia [2012] WASCA 61 [31] (Mazza JA) and Snook v The State of Western Australia [No 2] [2015] WASCA 29 [103] ‑ [104] (Hall J).
176The circumstances in which a miscarriage of justice may be established are not closed, but there are three well‑recognised circumstances which will justify the setting aside of a plea of guilty, being:
1.where the accused did not understand the nature of the charge or did not intend to admit guilt; or
2.if upon the admitted facts the accused could not, in law, have been guilty of the offence; or
3.where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.
177At common law, it is not a sufficient basis to set aside a plea of guilty to merely demonstrate that an accused may not have committed the offence in question.
This is not an application brought pursuant to s 99 of the Criminal Procedure Act 2004 (WA) and the common law principles as stated in Birch are instead relevant.
The principles were similarly summarised in Snook v The State of Western Australia [No 2]:[4]
[4] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [102] - [107].
102An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 Dawson J. There are three well recognised grounds for allowing a change of plea:
(1)where the applicant did not understand the charge or did not intend to plead guilty;
(2)where on the admitted facts the applicant could not in law be guilty of the offence; and
(3)where the plea of guilty has been obtained by inducement, fraud or intimidation.
See Borsa v The Queen [2003] WASCA 254 and Webster v The Queen [2015] WASCA 20.
103These are not however the only circumstances that might justify a change of plea and such a change should be permitted by a court whenever not to do so would result in a miscarriage of justice. Where an application is made to change a plea, the onus is on the applicant to show why he or she should be permitted to do so: Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496. This is not an easy thing to do in circumstances where the person had legal representation at the time of entering the plea.
104Attempts to change a plea are approached by the courts with caution bordering on circumspection: Liberti v The Queen (1991) 55 A Crim R 120. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice: Pilkington v The Queen [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.
105A distinction must be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment. Reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty: Meissner v The Queen. The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice or improper pressure.
106An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [157] Dawson J, see also Wilhelm v The State of Western Australia [2013] WASCA 188, Mazza JA [51].
107If it appears to a sentencing judge that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt it cannot be accepted and the court is obliged to enter a plea of not guilty: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 511.
This application is brought on the basis that a miscarriage of justice has occurred for the first of those three recognised grounds for allowing a change of plea, namely that the applicant did not understand the charges or intend to plead guilty to them. In closing submissions the applicant's position was further refined. It was submitted the applicant made a mistake when he pleaded guilty to count 1, that is, that he did not understand the allegation was in relation to the dumbbell incident. In relation to counts 3 - 6, he felt under undue pressure on the morning of the hearing to pre‑record AB's evidence to enter pleas of guilty.
At the commencement of his evidence‑in‑chief, when asked by his counsel to explain why he wanted to change his pleas of guilty to the five violence charges, Mr Randall explained:[5]
… Just basically this has been an ongoing matter for a long time. I felt that I never received any - I never knew - really knew about the - the dumbbell incident, I'll call it, and I never realised that I was pleading guilty to it at the time from the time that my first trial was abandoned because of a deal that - that never went through on the day sort of thing. From that day I never had any more legal - I never had a chance to further get instructions or - or give instructions or better my - what would you call it - with the DPP, I never had a chance to further negotiations with the DPP. And basically there's so many charges in the beginning that there was charges added, there was charges taken away. Each time I appeared for court (indistinct) charges came off, charges come on; I didn't understand. And basically I never agreed to any of these facts, you know. And I - I maintained my pleas of not guilty the whole way. And only at the point of prerecording where I had no representation and my hands felt forced I felt pressured by the courts. They told me I was wasting their time. I felt pressured by Mr McKenzie and I didn't have a proper understanding of what those exact charges were. I believe they were all one - one instance at Coogee Beach and he began to explain to me that if I didn't agree to the facts it didn't matter. On that day I had to enter my pleas, that was a must, and I had no time really to speak with him before. He said the pleas must … be entered on this day.
[5] ts 465.
Mr Randall essentially maintained that position in both his evidence‑in‑chief and in cross‑examination.

5 August 2021 - Ms Gilders meets with the applicant at the Albany Regional Prison

In his affidavit sworn on 29 November 2023, the applicant states that at a hearing about two weeks before the first trial was due to commence on 21 March 2022 (probably the callover on 2 March 2022) he spoke with Ms Gilders about a deal that he would plead guilty to the rest of the charges if the DPP agreed to drop the sexual penetration charge. This was the first time he had heard of a potential deal which surprised him because he did not recall discussing it with Ms Gilders beforehand although he had told her he might be willing to do a deal if the sexual penetration charge was dropped.
After the court hearing he telephoned Ms Gilders from Albany Prison in the belief the DPP were going to drop the sexual penetration charge and said he would not plead guilty to the facts for the other charges as they were and asked for the facts to be changed. He believed the other charges just related to the Coogee Beach allegations. He said he never sat down with Ms Gilders face-to-face to go through the facts.
Later in his affidavit the applicant states that he did meet Ms Gilders at the Albany Prison and they went through some of the evidence. He explained what did not happen and told her he was not guilty to everything.[6]
[6] Applicant's affidavit sworn 29 November 2023, par 135.
The applicant states that he never saw a copy of the final statement of facts for the charges in the District Court and the first time he heard the facts read out in court was at the trial when he was convicted of the sexual penetration charge.[7]
[7] Applicant's affidavit sworn 29 November 2023, pars 138, 140.
In his evidence-in-chief, Mr Randall said he thought the meeting with Ms Gilders at the Albany Prison was about 45 minutes to an hour in duration during which Ms Gilders only went through part of the brief in bits and pieces. She asked him about the facts and he continuously told her no, that is not what happened. They also spoke about making a bail application.[8] He was uncertain about the facts which were read to him because he was not sure how many charges there were and because he had never been given a copy of the amended SOMF.[9] He said he was at one stage sent part of the brief but only had half an hour to read it and then sent it to Ms Gilders. He read the original statement made by AB which he thought may have been the statement he went through with Ms Gilders.[10]
[8] ts 466.
[9] ts 467.
[10] ts 468.
He remembered having to keep asking Ms Gilders to be quiet about the ex‑officio matters because he was quite anxious about them because of the stigma of what he had been charged with.[11] He recalled her reading out each count and him telling her that is not what happened.[12]
[11] ts 469 - ts 470.
[12] ts 470.

In cross-examination he said he did not remember Ms Gilders explaining what ex officio meant but that she said the charges had been dropped on him referring to the sex assault charges.[13] He had earlier heard that those charges had been dropped on him from Mr Kraus in preparation for the bail application which he said was the first time he had heard about those charges.[14]
[13] ts 488.
[14] ts 489.
Given the bail application occurred some months after this conference with Ms Gilders I find the applicant's memory about when he first heard of the charges is unreliable and wrong.
In cross-examination Mr Randall was taken to Ms Gilders' affidavit regarding the meeting on 5 August and the notes she made confirming his instructions in response to the factual allegations set out in the amended SOMF. He accepted Ms Gilders read out to him the paragraphs referring to the dumbbell incident but did not agree that he would have said that he did assault her just not with anything and not bad.[15] He accepted Ms Gilders read out those facts which were in relation to count 1. He said that that was the first time he had heard of the dumbbell incident.[16] He agreed that Ms Gilders did go through the amended SOMF with him and the factual allegations in relation to each count.[17] However, he maintained he had never received a copy of the indictment.[18] Nor had he ever been provided with a copy of the amended SOMF.[19] This, referring to the cross-examination, was the first time he had seen the amended SOMF.[20] Even though the amended SOMF was read out to him he did not fully grasp that the dumbbell incident was a new added charge and maintained that nothing was clearly explained to him.[21]
[15] ts 491 - ts 492.
[16] ts 492.
[17] ts 493.
[18] ts 493.
[19] ts 494.
[20] ts 494.
[21] ts 495.
He denied that in that meeting with Ms Gilders he told her he was prepared to plead guilty to the violence charges if the sex charges were removed.[22] He did not remember whether Ms Gilders told him that even if he pleaded guilty to the violence charges and the sex charges were removed he had zero chance of not being sentenced to a term of imprisonment.[23]
[22] ts 497.
[23] ts 497.
In her affidavit[24] Ms Gilders outlines that:
[24] Ms Gilders' affidavit, Exhibit 5.
(a)she had a Skype meeting with the applicant from the Albany Regional Prison on 6 April 2021 in which the applicant informed her his previous counsel had never read him the facts;
(b)she read the applicant the amended SOMF for each offence with which he was charged and that she believed she explained the elements of each charge to him although she could not specifically recall, it was her standard practice to do so;
(c)there was some overcharging given there was overlap across 28 charges which were initially preferred;
(d)the applicant's instructions were that the allegations were factually inaccurate, that the victim had mental health issues and was a drug user and had made similar false allegations against other people;
(e)after she reviewed the brief of evidence in April and in May she spoke to the applicant over the telephone and then on the 14 May 2021 sent an email to the file manager that pleas of not guilty were maintained;
(f)on 26 May 2021 another practitioner from her office appeared for the applicant in the Magistrates Court when pleas of not guilty for five charges were maintained and the matter was then committed to the District Court for trial;
(g)Ms Gilders then met in person with the applicant on 5 August 2021 at the Albany Regional Prison over about an hour and a half during which she provided him with a copy of the indictment and the amended SOMF which included the ex‑officio counts of sexual penetration without consent. She also explained the trial would be oath on oath but there were aspects of the complainant's version which to an extent were corroborated by independent evidence, the CCTV and text messages;
(h)Ms Gilders had a distinct recollection that when she was discussing the matters with the applicant, he repeatedly told her to be quiet when reading through the amended SOMF, in particular when referring to the charges of sexual penetration, which she assumed was because he did not want other prisoners nearby to hear the nature of the charges categorising him as a sex offender;
(i)she obtained the applicant's instructions as to the amended SOMF and as to bail; and
(j)an application for bail was then prepared and Mr Kraus was instructed to appear on behalf of the applicant at the bail hearing on 7 December 2021 before Bowden DCJ.
In her evidence-in-chief, Ms Gilders confirmed she met Mr Randall at the Albany Regional Prison on 5 August 2021 when she flew to Albany. She met with Mr Randall at the Albany Regional Prison for at least an hour and a half.[25] She contemporaneously made handwritten notes of her face-to-face meeting with Mr Randall.[26] She had a copy of the indictment with her which had been filed the previous day, a copy of which she gave to Mr Randall because there were issues with the ex‑officio counts. She also gave Mr Randall a copy of the amended SOMF which she read to Mr Randall and obtained his instructions in response to the statement. Mr Randall questioned her about the new ex-officio counts and she explained that the Director's office, based on the evidence, can make a decision as to additional counts on the indictment.[27]
[25] ts 561 - ts 562.
[26] Ms Gilders' affidavit, Exhibit 5, Annexure ZG5.
[27] ts 548 ‑ ts 459.
Mr Randall disagreed with the sexual penetration allegations.[28]
[28] ts 549.
As she took Mr Randall through the amended SOMF dated 3 August 2021, she made handwritten notations of his instructions.[29] As she read the material facts Mr Randall interjected or commented in respect of the factual allegation and Ms Gilders made a note of it.[30]
[29] Ms Gilders' affidavit, Exhibit 5, Annexure ZG6.
[30] ts 550.
In relation to count 1, which has been described as the dumbbell incident, and is referred to in pars 5 and 6 of the amended SOMF, Ms Gilders wrote:
Did assault her just not with anything. 'Not bad'
After par 6 Ms Gilders noted the accused said:[31]
She's on drugs and psychotic.
[31] ts 550.
Throughout the amended SOMF where Ms Gilders noted an 'X', that meant that Mr Randall denied the allegation. Wherever she has noted a tick, that means Mr Randall agreed with the allegation.[32] So, for example, in relation to par 14 the accused agreed with the allegation that he 'pushed the complainant on to the ground', but disagreed with the allegation 'and whilst punching her'.[33]
[32] ts 550.
[33] ts 550 - ts 551.
During her meeting with Mr Randall he repeatedly sought to reagitate the issue of bail and she had to keep redirecting his attention to the factual allegations because a trial listing hearing was coming up.[34]
[34] ts 550.
Ms Gilders advised Mr Randall that it was an oath on oath case and, however, injuries and CCTV corroborate the victim's version to an extent.[35] She advised Mr Randall he could not run the trial on the basis that the victim would not appear because there is other evidence such as CCTV and his admissions against interest.[36]
[35] ts 551.
[36] ts 552.
She discussed with Mr Randall whether there was scope to resolve things without a trial. Mr Randall maintained his plea of not guilty and she advised him of his right to trial, the s 9AA Sentencing Act discount and the burden and standard of proof.[37] Mr Randall later instructed her to get rid of the sex charges and that he wanted an order and not jail, but she advised him that there was zero chance that if he was guilty even without the sex charges, he would be sentenced to a community type disposition.[38]
[37] ts 552.
[38] ts 552.
Mr Randall appeared to understand very well the nature of and the hierarchy of charges and the difference between an allegation of common assault and an allegation of assault causing injury.[39] The general tenor of his instructions was that the complainant was a junkie, she was never held against her will, she elected to stay with him for drugs, that he was already in possession of her bank card and that it was generally a volatile relationship in which they each assaulted the other.[40] He said that any assault he inflicted upon her did not result in the injuries as alleged in the facts.[41]
[39] ts 558.
[40] ts 558.
[41] ts 558.
When she was initially instructed Mr Randall sent her the committal brief which he had received from his former lawyer. She later sent a further copy to Mr Randall which was more than 300 pages because there were a lot of photographs.[42] At the time she met with Mr Randall at the Albany Regional Prison she did not have the full prosecution brief.[43]
[42] ts 562.
[43] ts 563.
Ms Gilders agreed that when she was discussing the allegations and the amended SOMF Mr Randall repeatedly asked her to keep her voice down when she was reading out the sexual penetration counts because he was embarrassed and concerned that other people might hear the allegations.[44] Ms Gilders did not accept there was any difficulty in being able to adequately communicate with Mr Randall.[45]
[44] ts 563 - ts 564.
[45] ts 564.
Ms Gilders impressed as having a good recollection of her meeting with Mr Randall at the Albany Regional Prison on 5 August 2021, assisted by the contemporaneous handwritten notes and notations she made. She impressed as being thorough in her preparation for the meeting with Mr Randall, having received the amended seven-count indictment the day before, and was thorough in her discussions with Mr Randall regarding the nature of the allegations against him and the factual basis for those allegations and the various issues to be addressed in determining how to respond to and prepare a defence against the allegations.
I accept Ms Gilders' evidence that the meeting lasted for about 90 minutes. I am satisfied that by the end of that meeting Mr Randall would have had a clear understanding of the nature of the allegations against him and the factual circumstances relied upon by the State to establish those allegations. In particular, I am satisfied that following that meeting Mr Randall would clearly have known that count 1 referred to the so‑called dumbbell incident and that it was alleged he had struck the complainant with the bar of the dumbbell multiple times shortly prior to Australia Day 2020, as summarised at pars 4 and 6 of the amended SOMF, to which Mr Randall responded that he did assault the complainant just not with anything and that it was not that bad. I am satisfied from that point in time onwards in further discussions and meetings with Ms Gilders and with his subsequent counsel, Mr Kraus and Mr McKenzie, Mr Randall had a full understanding of the nature of the allegations against him as contained in each count on the indictment and the factual basis for those allegations.
I find Ms Gilders provided Mr Randall with a copy of the amended SOMF and a copy of the indictment which she had received the previous day. I reject Mr Randall's explanations that he did not receive those documents. I reject his explanation that he did not fully grasp that the indictment in count 1 and the amended SOMF referred to the dumbbell incident.

7 December 2021 - Bail application

The applicant first appeared in this court on 7 December 2021 before Bowden DCJ in relation to an application for bail. (There was an earlier hearing before the Chief Judge on 20 August 2021 when the matter was listed for trial commencing on 21 March 2022, but the applicant did not appear at that hearing). Mr Kraus appeared on behalf of the accused at the hearing on 7 December. The applicant appeared via audio visual link from Albany Regional Prison. The application for bail was refused and the applicant was remanded in custody.
In opposition to the application the prosecutor referred to the facts relevant to counts 4 - 7 (there were seven counts before a count alleging anal sexual penetration was later discontinued) which were, it was submitted, corroborated by CCTV evidence of the applicant's violent interaction with the victim AB.[46] Reference was also made to the evidence of text messages on the victim's phone from the victim's aunt when the aunt knew the applicant was in possession of the phone in which the State submitted, the applicant made admissions to the offending the subject of counts 4 - 7.[47] There was also a reference to the evidence the State would rely upon in relation to counts 1 and 2,[48] essentially AB's evidence in accordance with her police statement and observations of police officers of AB's presentation with black eyes which were consistent with the allegations made.
[46] ts 9 - ts 10.
[47] ts 9 - ts 10.
[48] ts 10.
During the hearing the applicant sought to speak directly to the judge. The judge adjourned the hearing to allow the applicant to speak directly to his counsel Mr Kraus. When the hearing resumed counsel said that his instructions were to convey that a lot of the evidence against the applicant came from AB's statement and that all of the charges in her statement 'are fiercely contested' and there will be multiple attacks upon her capacity to tell the truth and motivation to lie.[49]
[49] ts 12.
In his reasons for decision to refuse bail Bowden DCJ outlined the allegation in each count[50] and, after noting the seriousness of the allegations, which were 'hotly' contested by Mr Randall, briefly outlined the factual circumstances alleged by the State in relation to each of those counts:[51]
Now, the State point to a number of matters in relation to the allegations. Count 1 in essence relates to an allegation that he hit the complainant over the head with a dumbbell.
Count 2 relates to putting his penis into her vagina when she kept saying 'No'.
Count 3 alleges that he put his penis into her anus in circumstances where she was saying, 'No'.
Count 4 relates to him depriving her of her liberty.
Count 5 relates to 1 March 2020. This count, it's said to be at least partly captured on CCTV where they say the complainant got out of the car, pleaded with the attendant to allow her to be entered into the store. She was pushed to the ground and punched, and her property was taken.
Count 6 relates to him hitting the complainant on the head and body with a torch and a hammer.
Count 7 alleges the threat to cut off her hair and also threatened to kill the complainant.
Now, as I have said, clearly the complainant has made statements which support the allegations. Clearly Mr Randall disputes those allegations and they are going to be the subject of a vigorously defended trial.
[50] ts 13.
[51] ts 15 - ts 16.
It is noted that then count 3, which was an allegation of anal sexual penetration, was later discontinued by the State.
From that brief summary of the allegations and the alleged facts of the allegations in the presence of the applicant I do not accept his evidence and submissions made on his behalf that on the day on which he entered pleas of guilty and in the lead up to that day he was not fully aware of the nature of the allegations and the factual basis upon which each of the counts on the indictment were based and entered pleas of guilty without fully understanding what was being alleged.
I am satisfied that following the face-to-face meeting with Ms Gilders at the Albany Regional Prison on 5 August 2021, during which Ms Gilders took time to read out the amended SOMF and to provide a copy of that statement and the indictment to Mr Randall, he fully understood the nature of the allegations against him and the factual basis of those allegations. Further, I am satisfied that the brief summary of the allegations and the factual circumstances of them summarised by Bowden DCJ would only have reinforced in Mr Randall's mind the nature of the allegations and the factual circumstances of them.

Ms Gilders' further meetings and discussions with Mr Randall

Although in his affidavit the applicant does not refer to a Skype meeting with Ms Gilders on 17 January 2022, in cross‑examination he accepted he did have a Skype meeting with her but he could not remember when or exactly what was discussed. He agreed they would have talked about the approach to take at the trial in March 2022.[52] Having been referred to Ms Gilders' notes of that meeting[53] and after some prevarication, Mr Randall eventually agreed that he gave his version of the Coogee Beach incidents, the subject of counts 4 - 7 of the then seven-count indictment, to Ms Gilders. He accepted that he told Ms Gilders that AB did receive injuries but he did not assault her in the way alleged at the beach with the torch.[54] He agreed that he instructed Ms Gilders that any sex between him and AB was consensual.[55] He accepted he instructed Ms Gilders that he maintained his pleas of not guilty in relation to all of the allegations that were going to trial.
[52] ts 498.
[53] Ms Gilders' affidavit, Exhibit 5, Annexure ZG10, pages 58 - 59.
[54] ts 499 - ts 500.
[55] ts 500 - ts 501.
He was then taken to his discussions with Ms Gilders in March 2022 in the lead up to the trial. He agreed that about two weeks before the trial he appeared by video link at a callover when the possibility of resolution was discussed in the court and that after the court appearance he spoke with Ms Gilders over the phone.[56] He denied he gave Ms Gilders instructions that if the DPP dropped the sexual penetration charges he was prepared to plead guilty to the balance of the charges. He said he would plead guilty to the balance of the charges if the facts were amended to reflect what actually happened and that he would not plead guilty to the charges if the facts were the way they were.[57]
[56] ts 501.
[57] ts 501.
That evidence supports an inference that he was fully aware of the factual allegations against him including the factual allegations regarding the so‑called dumbbell incident. Mr Randall would not have disputed the factual allegations without first knowing what the allegations were.
Mr Randall accepted that ultimately he did not have the opportunity to speak with Ms Gilders about a possible resolution of the factual basis of the allegations and instead spoke with Mr Kraus.[58] However, Mr Randall said he was not given a proper opportunity to go through all of the charges and the factual basis of them with Mr Kraus in the Skype meeting he had with him on 18 March.[59]
[58] ts 502.
[59] ts 502.
In cross-examination Mr Randall was taken to par 27 of his affidavit of 29 November 2023 and asked when it was before the callover that he had discussed with Ms Gilders about doing a deal if the sexual penetration charge was dropped. He disagreed that that discussion occurred at the face‑to‑face meeting in the Albany Regional Prison on 5 August 2021 but might have mentioned it to Ms Gilders in a phone call.[60]
[60] ts 502 ‑ ts 504.
In relation to the first day of the first trial on 21 March 2022, Mr Randall agreed that Ms Gilders was called to the court and she met him in the detention centre. They discussed how he intended to plead to the charges. He told her he wanted to take all of the charges to trial. They then discussed the plea proposal that had been put forward.[61] He did not accept that he told Ms Gilders he was prepared to plead guilty to the violence charges if the sex charges were discontinued to remove stigma.[62] He remembered Ms Gilders saying that if he was not going to plead guilty then she would withdraw from acting for him as well as Mr Kraus. He did not believe they spoke about doing any deals after that.[63]
[61] ts 515.
[62] ts 516.
[63] ts 516.
In her affidavit Ms Gilders further outlined that:
(a)in a further Skype meeting with the applicant on 17 January 2022 the applicant said he did assault the complainant but not in the manner she alleged in her statements and that she also assaulted and manipulated him. He said he did not rob her of her bank card and already had it in his possession at the Caltex service station and that the CCTV made the incident look bad. He did not force the complainant into the car at the Caltex but pulled her to the ground and in doing so grabbed her bag. He conceded that she had sustained injuries but disputed the cause;
(b)on 11 March 2022 she received a telephone call from the applicant indicating that if the State were to discontinue the charge of sexual penetration he would plead guilty to the balance of the matters, following which Ms Gilders emailed Mr Tooker advising him of her instructions. She specified she wanted to speak to the applicant face‑to‑face prior to making a formal offer. However because of the circumstances of the applicant's remand in custody and COVID-19 related matters she was unable to meet with him;
(c)on 21 March 2022, Ms Gilders spoke to the applicant either in the custody centre at the District Court or in the dock during which the applicant instructed her he wanted to take all charges to trial, maintained he had assaulted the complainant but not in the manner alleged, that he had told her previously he accepted the facts of each charge save sexual penetration but in providing those instructions he was pleading to untrue facts to get rid of stigma; and
(d)in those circumstances Ms Gilders formed the view that there had been a breakdown in the relationship between her and the applicant and that she could no longer continue to act for him. Although the applicant had consistently instructed her that he admitted to assaulting the complainant at various times he denied the use of the hammer and the dumbbell which he attributed to the complainant's drug use and mental health.

In her oral evidence Ms Gilders generally confirmed the matters set out in her affidavit.
In her evidence-in-chief Ms Gilders said that after her first meeting with Mr Randall at the Albany Regional Prison she next met with Mr Randall during a Skype connection on 17 January 2022 which was to discuss and prepare for an upcoming callover and to confirm Mr Randall's instructions as to whether or not the trial was proceeding and whether or not there was any scope for any type of resolution. Mr Randall was persistent about reagitating a bail application even though his application had been refused on 7 December 2021.[64] Ms Gilders also made contemporaneous handwritten notes of her discussions with Mr Randall in that meeting.[65] Mr Randall's instructions remained to maintain pleas of not guilty and to proceed to trial.[66]
[64] ts 553.
[65] Ms Gilders' affidavit, Exhibit 5, Annexure ZG10.
[66] ts 553.
Prior to the callover on 11 March 2022 Ms Gilders received a phone call from Mr Randall while she was out of her office. Mr Randall instructed her that if the State dropped the sex charges, he would plead guilty to the balance. Given she thought there had been inconsistencies in his previous instructions she emailed Mr Tooker at the DPP and said she wanted to speak properly to Mr Randall face‑to‑face and not simply on the telephone to confirm his instructions before making a formal offer to the State. However, she was not able to meet Mr Randall and left that task to Mr Kraus who later met with Mr Randall.[67] Ms Gilders confirmed that the initiative of proposing a resolution by pleading guilty to everything except the sex charges came from Mr Randall.[68] She agreed that the facts had to be dealt with.[69]
[67] ts 554.
[68] ts 554.
[69] ts 554.
Ms Gilders later met with Mr Randall on 21 March 2022 which was meant to be the first day of the trial. Because of her commitments, Ms Gilders had arranged for Mr Kraus to appear on behalf of Mr Randall at the trial. However, Ms Gilders was directed to come to the court by the trial judge.[70] She spoke to Mr Randall in the dock while the courtroom was vacated and made some brief handwritten notes at the time of her discussions with Mr Randall.[71]
[70] ts 555.
[71] Ms Gilders' affidavit, Exhibit 5, Annexure ZG12, pages 61 and 62.
In cross-examination, Ms Gilders said that Mr Randall's instructions to plead not guilty were inconsistent with his instructions regarding the factual circumstances when, for example, he said 'I did assault her but not that bad or not like that'.[72]
[72] ts 557.
She agreed that in the meeting with Mr Randall at the court on 21 March 2022 he told her he was pleading to untrue facts to get rid of stigma in reference to the violence charges and his discussions with Mr Kraus. She understood Mr Randall would plead guilty to the violence charges to remove the stigma of the sexual penetration charges.[73]
[73] ts 565 - ts 566.
In re-examination, Ms Gilders said that in her discussions with Mr Randall he appeared to have in‑depth knowledge about the case against him at all times and appeared to understand and was familiar with the allegations that the complainant was making.[74]
[74] ts 568.

21 March 2022 - First day of initial trial

In his affidavit of 29 November 2023, the applicant agreed he spoke with Mr Kraus via Skype when he was in Casuarina when he was informed Mr Kraus would appear for him at the trial because Ms Gilders was not available. However, they did not discuss any changes to the facts but spoke about a potential deal. They did not talk about the statement of facts because there was not time.
He did not see Mr Kraus until the first day of the proposed trial on 21 March 2022 when he met Mr Kraus in the detention centre of the court. Mr Kraus told him he could not represent him at trial unless he pleaded guilty to what had already been discussed and what the applicant had said to him about a proposed deal. The applicant said he was not going to plead guilty to something that did not happen and was not correct. Mr Kraus then informed the judge that the applicant was going to plead not guilty to everything and Mr Kraus could no longer represent him because of a conflict. There was further discussion with Mr Kraus about him pleading guilty and, later Ms Gilders, who recommended he plead guilty to the five violence charges and just go to trial on the sexual penetration charge, which the applicant said he could not do and was not going to plead guilty to the five violence charges.
In his oral evidence, Mr Randall agreed he had a Skype meeting with Mr Kraus on Friday 18 March 2022 when they discussed the upcoming trial due to commence the following Monday 21 March. The meeting occurred over about 20 minutes. They did not have time to go through the facts Mr Randall believed needed to be amended.[75] He did not accept that the main thing they talked about during the meeting was a possible resolution of the charges but accepted they did speak about a potential deal and what would happen but he, Mr Randall, was not happy because he had not been given an amended statement of material facts that he was prepared to plead to. He was not prepared to plead guilty unless the facts were changed.[76]
[75] ts 504.
[76] ts 505.
Mr Randall prevaricated as to what was discussed. Mr Randall said that he may have agreed for Mr Kraus to put a proposal to the DPP and later said he possibly gave those instructions to the DPP.[77] When asked whether he instructed Mr Kraus he would agree with the facts as they were to make that deal go through he said 'Maybe'.[78]
[77] ts 505 - ts 506.
[78] ts 506.
When asked whether Mr Kraus read the facts to him, Mr Randall again prevaricated, ultimately saying he did not remember the facts being read to him.[79]
[79] ts 506 - ts 507.
When asked whether Mr Kraus had to put the facts to him to see if he would agree with those facts as a part of the settlement proposal, Mr Randall said he did not recall.[80]
[80] ts 507.
By the end of the meeting Mr Randall accepted that he believed there was potential for a deal, but he was not sure how it would look.[81]
[81] ts 507.
Mr Randall accepted that he met Mr Kraus in the detention centre on the morning of 21 March when Mr Kraus informed him that the proposed plea deal had not been accepted by the DPP.[82]
[82] ts 507.
Mr Kraus told him that the only way the trial would be proceeding was if he pleaded guilty to the things that he had made admissions to and that if he did not, he, Mr Kraus, could not represent him.[83]
[83] ts 508.
He agreed that after Mr Kraus had told him that the proposed plea resolution had not been accepted, they discussed how to proceed with the trial. He agreed that the contents of par 23 of Mr Kraus' affidavit were correct.[84] He did not accept the contents of par 25 of Mr Kraus' affidavit were correct. Mr Randall said he had never hit AB with a hammer but did assault her and that Mr Kraus had misconstrued what Mr Randall had told him when Mr Kraus said that Mr Randall had told him that he 'did flog her in her forehead using a hammer and did threaten to kill her'. Mr Randall reiterated there was never a hammer involved and that he never hit AB with a hammer.[85]
[84] ts 508.
[85] ts 509.
He agreed he made some admissions to Mr Kraus but said to him that he never hit AB with a hammer or with a torch and so Mr Kraus may have misheard him.[86] He agreed he may have told Mr Kraus that AB had pushed every button he had.[87] He agreed that in relation to count 4 that at the Caltex service station he had taken the complainant's bag and purse which related to the robbery allegation.[88]
[86] ts 509.
[87] ts 509.
[88] ts 509 - ts 510.
He did not agree with par 27 of Mr Kraus' affidavit which stated Mr Randall told Mr Kraus that he would plead guilty to counts 4, 5 and 6, being stealing, doing an unlawful act and making a threat to kill, but would contest counts 1, 2 and 3. Mr Randall said that the whole time he 'was in the dark about a dumbbell being a completely different incident' and had never understood that counts 1, 2 and 3 referred to incidents different from the Coogee Beach incident.[89] He maintained that he instructed Mr Kraus he would plead guilty to the Coogee Beach charges but only to amended facts.[90]
[89] ts 510.
[90] ts 510.
He agreed Mr Kraus might have given him advice that there was strong evidence in relation to the Coogee Beach allegations and the Caltex service station allegations but maintained he did not agree to any of the facts which had been alleged. Once Mr Kraus informed the court that Mr Randall would plead guilty to counts 4, 5 and 6, because Mr Randall had not agreed to the facts alleged he informed Mr Kraus that he would not plead guilty to counts 4, 5 and 6.[91] Mr Randall denied he agreed to plead guilty to those charges.[92] Mr Randall said that Mr Kraus tried to coerce him into the same as what Mr McKenzie did in the end and 'it's constantly been the same battle'.[93] Mr Randall then gave a long, confusing and unsatisfactory answer to a question of whether it was his evidence that Mr Kraus told the judge that he was going to plead guilty to three out of the six counts when Mr Randall did not give those instructions. Mr Randall said maybe he panicked and did say he would plead guilty to something that never happened but it was when he listened to what Mr Kraus and the judge were saying that he said that he was not going to plead guilty to what was alleged.[94]
[91] ts 512.
[92] ts 512.
[93] ts 512.
[94] ts 512.
He said he possibly told Mr Kraus about the matters referred to in pars 28 ‑ 30 of Mr Kraus' affidavit, that is, that he possibly told Mr Kraus that he contested the deprivation of liberty charge because AB chose to be with him and he did not lock her inside the car, that he contested the unlawful penetration charge because they only had consensual sex in the unit, and that he contested the assault occasioning bodily harm charge because it did not happen, but also he had left before AB was injured and he thought that one of the neighbours had injured her.[95]
[95] ts 513.
Mr Randall then said that he could not exactly remember what he instructed Mr Kraus in relation to pleading guilty to counts 4, 5 and 6 and not guilty to counts 1, 2 and 3, but when he was further questioned about his instructions said he possibly did provide those instructions but could not exactly remember.[96]
[96] ts 514.
Somewhat reluctantly, Mr Randall accepted that Mr Kraus must have gone over the charges with him at the meeting in the detention centre on the morning of 21 March during which Mr Randall told Mr Kraus what he said had actually happened. However, he did not believe Mr Kraus went through all of the allegations with him.[97]

Aidan Kraus

[97] ts 515.

In his affidavit Mr Kraus says he had a Skype meeting with the applicant on 18 March 2022 in which he informed the applicant that the State case against him was reasonably strong in relation to those counts relying on CCTV footage. He also spoke about potential cross‑admissibility and propensity issues.
Mr Kraus also advised Mr Randall of his estimate of the sentence he might receive if he was convicted of all charges after trial. He then spoke about a potential plea offer and he went through the amended SOMF with the applicant following which the applicant instructed him to make an offer to plead guilty to all of the charges against him except for the sexual penetration without consent charge. The meeting took about half an hour.
Mr Kraus then emailed an offer to Mr Tooker and later received a response advising that the plea offer was rejected.
Thereafter Mr Kraus was unable to contact the applicant until 21 March 2022 in the court detention area and again spoke to the applicant about the evidence relied upon by the State and the strength of the State's case. The applicant agreed with counts 5 and 6 and agreed 'he did drive out bush with the complainant and flog her in her forehead using a hammer and did threaten to kill her'. He said 'she had pushed every button that she [sic he] had and it was really her fault for pushing him to that level'. That information was volunteered without any prompting by Mr Kraus.
He also agreed in relation to count 4 that at the Caltex service station he had taken the victim's bag and purse and that he was initially trying to grab her bag from her because she had taken his drugs and tried to leave with them. The applicant then instructed Mr Kraus that he would plead guilty to counts 4, 5, and 6 but would contest counts 1, 2 and 3. He contested the deprivation of liberty because he said the complainant chose to be with him up until that point. Although they had arguments, he did not lock her inside the car.
He maintained his contest in relation to the sexual penetration without consent charge.
He said the assault occasioning bodily harm charge did not happen. He thought one of the neighbours had injured the victim.
Mr Kraus then informed the court that the applicant would plead guilty to counts 4, 5 and 6 and that the trial could proceed in relation to the first three counts. However just before the jury empanelment commenced the applicant indicated he wanted to speak with Mr Kraus from the dock. The applicant said he had reservations about counts 4, 5 and 6 being used against him and claimed that he did not understand despite Mr Kraus reminding him what they had spoken about on Friday. The applicant then said that he did not want to plead guilty to anything and felt that the State should have accepted his plea offer. The applicant went on to say that he did not feel like he had had enough time to talk to his lawyers about the case or trial and felt he needed more time to talk to Ms Gilders.
As a result of those instructions Mr Kraus felt he was placed in a position of conflict and then applied to be recused.
In his evidence-in-chief, and by reference to par 16 of his affidavit, Mr Kraus confirmed that in the Skype meeting with Mr Randall on 18 March 2022, which was on the Friday before the trial was due to commence the following Monday, he read the amended SOMF to Mr Randall and during that meeting Mr Randall instructed him to offer pleas to everything on the indictment except the sexual assault charge, that is, all of the counts alleging acts of violence.[98] Mr Kraus was instructed by Mr Randall he would plead guilty to all of the charges except the rape charge on the facts which had been read to him, but only for the purposes of sentencing.[99] The Skype meeting lasted for about half an hour.[100]
[98] ts 571; handwritten notes, Exhibit 6.2.
[99] ts 571.
[100] ts 577.
Thereafter there was an exchange of emails between Mr Kraus and the prosecutor, Mr Tooker, that Mr Kraus anticipated Mr Randall would instruct him to offer to plead guilty to all counts except the unlawful penetration count.[101] Mr Tooker responded that if there was to be resolution of the matter it would be on the basis of an acceptance of the facts in the amended SOMF, which was the statement Mr Kraus had with him and which he read to Mr Randall. Later that afternoon, Mr Kraus confirmed that Mr Randall had instructed him he would enter pleas of guilty to all counts on the indictment except for the unlawful penetration count on the basis of the facts as described in the amended SOMF.[102] That offer was on the basis the State would discontinue the sexual penetration count. The offer was later that afternoon rejected by the DPP.[103]
[101] ts 572; Exhibit 7.
[102] ts 573; Exhibit 7.
[103] ts 574.
Mr Kraus next met with Mr Randall on the morning of 21 March 2022, the first day of the trial. He made handwritten notes at the time but has only been able to retrieve some of his notes.[104] Later in the day, after he had been recused from acting for Mr Randall, he prepared typewritten notes of his meeting with Mr Randall.[105]
[104] ts 574; Exhibit 6.3.
[105] ts 575; Exhibit 6.4.
During the meeting with Mr Randall on 21 March 2022, he was instructed Mr Randall would plead guilty to counts 5, 6 and 7 in relation to the then seven‑count indictment.[106] Mr Kraus confirmed the contents of pars 25 - 30 of his affidavit detailed the instructions he obtained from Mr Randall that morning.[107] Mr Kraus confirmed that during his interactions with Mr Randall, Mr Randall appeared to understand the allegations against him.[108] Mr Kraus did not at any stage advise Mr Randall to plead guilty to the five violence charges and only go to trial on the sexual penetration charge. Although he may have canvassed that as an option, he did not advise him to do that.[109]
[106] ts 575.
[107] ts 576.
[108] ts 576.
[109] ts 576.
He described the State case against Mr Randall in relation to the violence charges as very strong and that a lot of the material was very prejudicial.[110] There was clear CCTV footage that was damning, depicting violence. There were also graphic photographs of injuries suffered by the complainant which Mr Kraus thought were problematic.
[110] ts 576.
He told Mr Randall that if he went ahead with the trial he would be 'smashed' at sentencing but was not encouraging him to plead guilty by that advice. Although he canvassed with Mr Randall as an option to plead guilty to the violence charges and proceed to trial on the sexual assault charge, which might result in a substantial discount of the sentence which would be imposed if convicted after trial, he did not advise Mr Randall how to plead.[111]
[111] ts 579.
Mr Kraus confirmed that Mr Randall did instruct him that he agreed essentially with counts 5 and 6 and said that 'he did drive out bush with the complainant and flog her in the forehead using a hammer'. Mr Randall told him that during quite a florid period for Mr Randall where he was providing a lot of information without Mr Kraus asking questions. It stood out to Mr Kraus.[112]
[112] ts 581.
Mr Kraus confirmed he did discuss cross-admissibility and propensity issues with Mr Randall and denied he did not.[113] He explained that if Mr Randall was convicted of any of the counts on the indictment it was likely the jury would be directed that they could use that in assessing some of the complainant's other evidence in respect of other counts.[114]
[113] ts 582.
[114] ts 582.
Mr Kraus explained that his ethical conflict and why he sought to recuse himself was that Mr Randall had told him he had committed some of the offences and gave details as to how but was then wanting to plead not guilty.[115]
[115] ts 584.
When Mr Randall instructed him to make the plea offer on 18 March he seemed comfortable with the position.[116] Mr Kraus did not have the opportunity to inform Mr Randall that the plea offer had been rejected until the Monday morning, 21 March.[117]
[116] ts 584.
[117] ts 585.
Mr Kraus' evidence as to the discussions he had with Mr Randall regarding the nature of the allegations against him and the instructions provided by Mr Randall both as to the factual circumstances of some of the allegations and to plead guilty to counts 4, 5 and 6 is similar to the evidence of Ms Gilders about her initial meeting with Mr Randall on 5 August 2021 and her subsequent discussions with him. I accept Mr Kraus' evidence regarding the discussions he had with Mr Randall, the advice he gave and Mr Randall's instructions in response. I am satisfied on the basis of that evidence Mr Randall understood the nature of the allegations against him and the factual basis of the allegations relied upon by the State. Throughout his discussions with both Ms Gilders and Mr Kraus, Mr Randall essentially admitted the offending the subject of counts 3 - 6 but disputed some of the facts alleged. Although the focus of the discussions seemed to be mainly around counts 4 - 6, I am satisfied Mr Kraus also read out and discussed the factual circumstances of the allegations the subject of counts 1 ‑ 3 to Mr Randall.
I am satisfied that from his telephone conference with Mr Randall the previous Friday, 18 March, which lasted for approximately half an hour, Mr Randall would have been clear as to the nature of the allegations against him on each count on the indictment and that the case against him in relation to the violence counts was strong, and stronger than the State case in relation to the sexual penetration count, count 2. I am satisfied that Mr Randall in the clear understanding of the nature of the allegations against him instructed Mr Kraus to offer to the DPP to plead guilty to the five counts of violence, on the basis of the amended SOMF, if the State discontinued the sexual penetration count which offer was then conveyed in the exchange of email correspondence with the prosecutor Mr Tooker on the afternoon of 18 March 2022.

I am further satisfied that in the meeting with Mr Randall at the detention centre of the District Court on 21 March 2022, after Mr Randall instructed Mr Kraus he would plead guilty to counts 4, 5 and 6, Mr Kraus acting on those instructions, informed the court, in the absence of the jury panel, that Mr Randall would enter pleas of guilty to those three counts before Mr Randall shortly thereafter withdrew those instructions, which ultimately led to Mr Kraus applying to recuse himself from further acting for Mr Randall.
I do not accept Mr Kraus would have entered into settlement negotiations with the prosecutor on the basis of the State's amended SOMF without instructions from Mr Randall. I do not accept Mr Kraus was confused about his instructions. I do not accept Mr Randall's evidence that he was in the dark about count 1 regarding the dumbbell incident and that he did not understand that counts 1, 2 and 3 were referring to different incidents.
Further, regarding the discussions on the morning of 21 March 2022, after Mr Kraus informed Mr Randall the plea offer put to the DPP on Friday had been rejected, it is implausible Mr Kraus would not have gone through the allegations against Mr Randall and the factual circumstances of them which was to be the first day of the trial. I accept Mr Kraus' evidence that he did go through each count on the indictment and the factual allegations with Mr Randall who provided instructions responding to the allegations. I accept Mr Kraus' evidence that by the end of that conference he was instructed Mr Randall would enter pleas of guilty to counts 4, 5 and 6 and pleas of not guilty to counts 1, 2 and 3, which is what he informed the trial judge, before unexpectedly Mr Randall, as the jury panel was being brought into the court, again spoke to Mr Kraus and withdrew those instructions. It is implausible Mr Kraus would have informed the trial judge of the way in which Mr Randall would plead without instructions from Mr Randall.
I do not accept Mr Kraus was confused about his instructions. I do not accept Mr Randall was confused about the allegations when he gave those instructions. I find Mr Randall understood the factual allegations in relation to each of counts 4, 5 and 6 when instructing Mr Kraus he would enter pleas of guilty to each of those counts in circumstances where he had been advised by both Mr Kraus and Ms Gilders that there was a strong State case in relation to each of those allegations.

30 September 2022 - Evidence of the victim AB pre‑recorded

In his affidavit of 29 November 2023, the applicant explained the difficulty he had contacting Mr McKenzie and was only able to speak to him for the first time for a few minutes about a week before the pre‑recording.
On the day of the pre-recording, on 30 September 2022, Mr McKenzie met him in the cells but only for about 15 minutes. Mr McKenzie recommended that he plead guilty to the five violence charges and that they only go to trial on the sexual penetration charge. The applicant said he did not really want to plead guilty to those charges and he did not agree with the allegations or the facts. Mr McKenzie told him that he would not be pleading to the facts but would be pleading to the charges and that the facts could be sorted out later. The applicant thought that they were only referring to the Coogee Beach incidents and said that he did not know about the dumbbell assault allegation.
Mr McKenzie told him he had to make a decision on the spot about what he wanted to do and he therefore felt under pressure to make a decision even though he did not believe he had received much legal advice. He felt he had no other option and therefore chose to plead guilty to the five violence charges. He was told that if he pleaded not guilty to those charges, he would be found guilty of everything. He said he did not know what he was pleading to and believed he was pleading to different incidents or allegations. He felt he had to enter pleas on 30 September because it was ordered by the court and because he felt he had no choice and was under a lot of pressure. Because the facts were not read out he did not know what he was pleading guilty to. He did not realise he was pleading guilty to count 1 which related to the dumbbell assault. He disagrees that that incident occurred at all and would not have pleaded guilty to count 1 if he had known it related to that incident. He said he never saw a copy of the final statement of facts for any of the charges and that it was not until the facts were read out in court during the trial when it was used as propensity evidence that he realised what he had pleaded guilty to. He later repeated that the first he heard of the facts regarding the charges to which he pleaded guilty were when the facts were read out in court during the trial.[118]
[118] Applicant's affidavit sworn 29 November 2023, par 140.
In cross-examination Mr Randall did not agree that the meeting with Mr McKenzie on the morning of 30 September 2022 prior to the pre‑recording hearing was about two hours in duration[119] and although he did not know how long the meeting took he said 45 minutes to an hour.[120]
[119] ts 520, ts 524.
[120] ts 524.
Mr Randall generally accepted that Mr McKenzie's summary of the conversation and of Mr Randall's instructions in relation to each count on the indictment, as set out at par 27 of Mr McKenzie's affidavit, was correct.[121] However, he did not agree with Mr McKenzie's statement at par 26 of his affidavit that by the end of the meeting Mr Randall had instructed him he would maintain not guilty pleas to all counts.[122] Mr Randall then gave a long, convoluted and confusing explanation as to what his position was regarding his instructions to Mr McKenzie.[123] He maintained that he felt pressured by Mr McKenzie to enter pleas, that if he did not plead guilty to the violence charges he would be found guilty of the sex charges and that he did not have sufficient time to properly discuss the matters with Mr McKenzie and did not have proper legal representation. He was confused. He felt rushed, pressured and coerced into entering pleas of guilty when he did not understand the charges and thought that Mr McKenzie was only referring to the North Coogee incidents.[124] He was told by Mr McKenzie he had to enter pleas that day before the pre‑recording commenced.[125] He felt he was forced to enter pleas.
[121] ts 520 ‑ ts 522.
[122] ts 522.
[123] ts 522 ‑ ts 527.
[124] ts 527.
[125] ts 529 ‑ ts 530.
Mr Randall maintained that before he entered the pleas the prosecutor spoke to the complainant to see if that would resolve the matter.[126] Mr Randall is wrong about that. Almost immediately upon the hearing commencing Mr McKenzie informed the judge that there had been a change of position and that Mr Randall intended to plead guilty to counts 1 and 3 ‑ 6, and not guilty to count 2, and Mr Randall was then immediately arraigned and the pleas taken.[127] When Massey DCJ asked the prosecutor whether the pleas of guilty were accepted in satisfaction of the indictment, the prosecutor, Mr Tooker, said that they did not but requested an opportunity to speak to AB to see if she still wanted to proceed with giving evidence that day. When the hearing resumed the prosecutor informed the court that the pleas were not accepted in full satisfaction so that the pre‑recording would proceed.[128]
[126] ts 532.
[127] ts 79 ‑ ts 81.
[128] ts 81 - ts 82.
Later in his evidence in cross‑examination, Mr Randall agreed he understood there was an allegation he had seriously assaulted AB when they became bogged at North Coogee and that he had hit her with a torch.[129] He also understood there was a charge relating to a threat to kill arising from the North Coogee incident and understood the nature of those allegations when he pleaded guilty.[130] He agreed he intended to plead guilty to the North Coogee matters but only because he was coerced.[131] He felt pressured by the court, by Mr McKenzie and generally by the whole thing to plead guilty to the North Coogee matters.[132]
[129] ts 537 ‑ ts 538.
[130] ts 538.
[131] ts 538.
[132] ts 529.
He felt pressure to plead guilty to counts 1, 3, 4, 5 and 6 by the system and by Mr McKenzie. He did not think he had proper legal representation. He felt rushed and felt coerced into entering pleas. He was confused.[133] He was told by Mr McKenzie he was only pleading guilty to the North Coogee incidents.[134]

Mr David McKenzie

[133] ts 527.

[134] ts 527.

In his affidavit of 8 February 2024, Mr McKenzie stated that after he was instructed, he had difficulty contacting the applicant in Albany Regional Prison, both because of Mr McKenzie's court commitments and difficulties within the prison including lockdowns. He first spoke with the applicant in a brief telephone call in July 2022 after he was sent a letter from Legal Aid written by the applicant expressing concerns he had not been able to contact Mr McKenzie. Mr McKenzie discussed some of the procedural background to the matter including the plea offer and whether or not the accused would plead guilty to counts 1 and 3 - 6.
On 29 September 2022 he had a further telephone conversation with the applicant in the lead up to the hearing to pre-record the evidence of AB who was wanting to delay the start of the hearing so that he and Mr McKenzie could have a longer discussion and for the applicant to provide detailed instructions. On 30 September at the custody area in the District Court building over two hours, Mr McKenzie met with the applicant during which he took full and detailed instructions from the applicant for the purposes of preparing for the pre-recording and also to obtain instructions regarding his plea to each of the six charges. The applicant's instructions were very detailed and sufficient to enable him to cross-examine the victim at the pre-recording as to all events relevant to each count on the indictment. He listened carefully to the applicant's instructions and remembered all of his instructions during the pre‑recording hearing.
Although he had always understood the applicant might plead guilty to counts 1 and 3 - 6, by the end of the meeting on 30 September the applicant had instructed him he would maintain not guilty pleas to all counts. The applicant outlined in detail his instructions to each of the six counts.[135]
[135] Refer Exhibit 8, Affidavit 8 February 2024, par 27.
Thereafter Mr McKenzie briefly met with the applicant in the courtroom who surprised Mr McKenzie by saying he would plead guilty to all counts on the indictment except for count 2, following which the applicant was arraigned on all counts and pleaded guilty to all counts except for count 2 to which he maintained a plea of not guilty.
At the pre-recording Mr McKenzie cross-examined the victim on all of her allegations in relation to all counts on the indictment.
Although Mr McKenzie did not provide the applicant with a copy of the amended SOMF, because he thought the applicant had already been provided with a copy, to get full instructions in relation to the pre‑recording he took instructions in relation to all of the allegations on the amended SOMF.
In examination-in-chief Mr McKenzie confirmed that the purpose of the meeting with Mr Randall on the morning of 30 September 2022, the day of the pre-recording, was to get fuller instructions from Mr Randall. Mr McKenzie had previously spoken with Mr Randall, had read the brief and watched the video record of interview. He organised with the court to delay the start of the pre-recording to allow him to meet with Mr Randall. His recollection was the meeting went from about nine o'clock to just before eleven o'clock.[136]
[136] ts 588.
Although his memory was slightly hazy, he recalled he and Mr Randall first discussed what Mr Randall called the broken deal with the State over the charges and Mr Randall gave a general view as to what he might like to do that day in terms of pleading to the charges. They discussed the strength of the case against Mr Randall in relation to each of the charges going through each of the charges chronologically but focussing more on the sexual charge than the violence charges.[137] There was discussion as to whether he should plead guilty to counts 1 and 3 - 6 and what he would do in relation to those counts, but he always said that the sexual allegation never happened so he was pleading not guilty to count 2.
[137] ts 588.
Mr McKenzie agreed with Mr Randall that the State case was stronger on the violence counts than the sexual assault count.[138] Mr McKenzie also took instructions in relation to each count so he could properly conduct the pre‑recording.[139] His understanding at the end of the meeting was that Mr Randall would plead not guilty to each of the counts on the indictment and the pre-recording would proceed in relation to all of the charges.[140]
[138] ts 589.
[139] ts 589.
[140] ts 589.
Mr Randall appeared to understand the nature of the allegations against him.[141]
[141] ts 589.
In response to Mr Randall's statement in his affidavit that he only met with Mr McKenzie for maybe 15 minutes because Mr Randall arrived late from the prison, Mr McKenzie said that although he could not remember the exact time the meeting started it was longer than 15 minutes because during the meeting he played the Caltex CCTV footage to Mr Randall.[142]
[142] ts 592.
I reject Mr Randall's evidence about the duration of the meeting. I accept Mr McKenzie's evidence that the meeting was a relatively long meeting taking about two hours.
In relation to Mr Randall's statement that Mr McKenzie recommended that he plead guilty to the five violence charges and only go to trial on the sexual penetration charge, Mr McKenzie said it would not have been as strong as a recommendation because he was going to be guided by Mr Randall, but agreed he did say that the State case was strong on the charges other than count 2, by reference to the evidence which the State would rely upon, including photographs of the complainant's injuries. Mr McKenzie thought he did not recommend anything, he just asked for instructions having discussed the strength of the violence charges.[143]
[143] ts 592.
Mr McKenzie agreed that Mr Randall did tell him that he did not agree with the allegations or the facts and he did disagree with the amended SOMF.[144]
[144] ts 593.
Mr McKenzie agreed that he did advise Mr Randall that he would not be pleading to the facts but was only pleading to the charges and the facts could be sorted out later, that the facts could be disagreed with, even with a guilty plea, and that there could be a trial of issues.[145]
[145] ts 593.
Mr McKenzie did not agree with Mr Randall's statement that when they were discussing the guilty pleas he thought it was only for the Coogee Beach incidents and that he did not know about the dumbbell assault allegation at all. Mr Randall told him that he may have hit the complainant but certainly not with a dumbbell.[146]
[146] ts 593 - ts 594.
Mr McKenzie agreed that he said something like that if Mr Randall pleaded not guilty to everything and the jury heard about the violence charges and saw the photographs, he would be convicted of everything 100%, but it was an exaggerated version of what he said. However, he accepted the general tenor of the advice he gave Mr Randall was that he would have a better chance of getting off the sexual assault charge if he pleaded guilty to the violence charges and removed them from the trial. In relation to the dumbbell incident, Mr Randall instructed him that the complainant had gone out and that she may have been assaulted by someone else.[147]
[147] ts 594.
Mr McKenzie accepted there was some truth to Mr Randall's statement that he informed Mr Randall that he had to make a decision on the spot about what to do and that Mr Randall may have felt under pressure to make a decision. Mr McKenzie explained that Mr Randall had to make a decision that day about how he pleaded to each of the charges. Mr McKenzie needed to know how the pre-recording was going to proceed, whether in relation to a particular charge or to all of the charges.[148] Mr McKenzie later clarified that if Mr Randall was going to plead guilty to some counts it was better that that be sorted out before the pre-recording started.[149]
[148] ts 595.
[149] ts 595 - ts 596.
Mr McKenzie disagreed that he told Mr Randall he would be found guilty of everything if he pleaded not guilty, but he did advise Mr Randall that the evidence of the violence was going to be horrible before a jury and that if it was not a live issue then he would probably have a better chance of succeeding on count 2 than if that evidence was before the jury.[150]
[150] ts 596.
Mr McKenzie confirmed that although there had been some vacillation by Mr Randall about what pleas he would enter, by the end of the meeting Mr McKenzie understood not guilty pleas would be maintained to each count on the indictment and that the pre-recording would proceed in relation to all counts.[151] It was only when Mr McKenzie again spoke with Mr Randall in the court that Mr Randall informed him he would plead guilty to counts 1 and 3 - 6 and that they would have the pre‑recording about count 2, the sexual assault allegation.[152]
[151] ts 597.
[152] ts 597.
Mr McKenzie's intention was always to oppose an anticipated State s 31A Evidence Act application. Although he thought the chances were very poor on count 1, he thought there was a chance of having counts 3 ‑ 6 and the facts underpinning the convictions ruled inadmissible.[153]
[153] ts 597.
In cross-examination, Mr McKenzie disagreed there was only one telephone conversation with Mr Randall and said that from his records there were two telephone calls, one in late July 2022 and another short call on 29 September 2022, the day before the pre-recording.[154] He disagreed that the only telephone conversation with Mr Randall was on 15 September. He had no record of a telephone call on that date.[155]
[154] ts 598.
[155] ts 599.
Mr McKenzie confirmed he was an experienced criminal trial counsel, particularly in relation to sexual allegations.[156]
[156] ts 600.
By the time he met Mr Randall he had identified areas in which he lacked detailed instructions and in respect of which he had specific queries of Mr Randall. The 30th of September was the first chance to take full instructions.[157] Mr McKenzie agreed he had limited instructions from Mr Randall prior to the meeting on 30 September.[158]
[157] ts 600.
[158] ts 601.
Mr McKenzie told Mr Randall that the violence charges would be difficult to defend and that if he maintained his not guilty plea to those counts it might have an impact on the jury's decision as to his guilt on count 2. He did not think that he told Mr Randall that it was going to be 100% that he would be found guilty because he does not use words like that, but he would have said that pleading not guilty to the violence counts would reduce his chances of success on the sexual count.[159]
[159] ts 606.
He explained to Mr Randall that he hoped the jury would not see the violence offences if he pleaded guilty to them and that he might be able to oppose the evidence being used at the trial. He would not have talked about s 31A but would possibly have used the word 'propensity' and would have said that he would try to oppose it as being part of the evidence at the trial.[160]
[160] ts 606 - ts 607.
Mr McKenzie accepted that Mr Randall might have been of the impression that from the advice Mr McKenzie gave him that the jury might not see the evidence of the violence at all.[161]
[161] ts 607.
Mr McKenzie disagreed that he did not show Mr Randall the CCTV footage of the Caltex service station in the detention centre during their conference. Because it was an important aspect of the matter, it was very important that he showed the footage to Mr Randall and question him about it and what the struggle in the garage was about.[162] Mr McKenzie did not accept that he told or advised Mr Randall it would be best to plead guilty to the violence offences but remembered saying he had a better chance of succeeding in defending count 2 if there was no evidence in relation to the violence matters.[163] He agreed he said something similar to, 'if you want to win this then let's just focus on the sexual assault and plead to the rest'.[164]
[162] ts 610.
[163] ts 610.
[164] ts 610.

He disagreed with Mr Randall's denial that he did not go through each of the counts in detail and reiterated he did because he wanted Mr Randall's instructions in relation to each of the matters, otherwise he would not be able to conduct the pre-recording and put Mr Randall's instructions as to the facts to the complainant in cross-examination.[165]
[165] ts 611.
Having been convicted on his own pleas of guilty to counts 1, 3, 4, 5 and 6 on the indictment, and pleading not guilty to count 2, the evidence of the victim AB was then pre-recorded during which she was examined and cross‑examined, not just in relation to the incident the subject of count 2 in which she gave evidence the applicant sexually penetrated her vagina with his penis without consent when they were in a family relationship, but also in relation to various incidents of violence perpetrated on her by the applicant during the course of their relationship, both before the incident the subject of count 2, and afterwards. That evidence formed the factual basis upon which the State alleges the offending the subject of the convictions on counts 1, 3, 4, 5 and 6 occurred. The victim was extensively cross-examined about the victim's evidence of the applicant's violence toward her. It was not suggested to her that her evidence was untruthful and unreliable regarding the factual circumstances. In relation to count 5, the assault with the torch and hammer as a result of which the victim suffered an injury to her forehead, it was put to her she was not struck with a torch, instead she hit her forehead on the dashboard of the car, which she denied.[166]
[166] ts 159 - ts 161.
Of course, the applicant was present throughout the giving of the victim's evidence which occurred over the course of a day. At no time did he alert the court that he wished to withdraw his pleas of guilty or that he did not understand the factual circumstances relied upon for the allegations in each count of which he had been convicted on his own plea of guilty.
AB gave detailed evidence about the dumbbell incident which occurred just before Australia Day 2020, describing how the applicant took the weight of AB's dumbbell and hit her in the head a few times in the corner of their bedroom as he was yelling in her face and then hit her one more time leaving a big egg on her forehead. He started crying and brought her an ice pack to put on her head.[167] He hit her about four times with the bar of the dumbbell and also hit her on the hand, but she did not think that he meant to do that.[168] Afterwards both her eyes were black.[169] She later, by reference to photographs which she marked, identified the dumbbells.[170]
[167] ts 90.
[168] ts 91.
[169] ts 92.
[170] ts 99 - ts 100.
AB also gave detailed evidence about other assaults upon her by the applicant and about the offending the subject of counts 4 ‑ 6 during which CCTV footage of their interaction at the Caltex Beeliar service station was played and tendered into evidence.[171]
[171] ts 106 - ts 109.
AB was cross-examined about her evidence of those incidents of violence including the assault with the dumbbell and the black eyes she suffered.[172] It was not suggested to her in cross‑examination that that incident did not occur or that someone else had hit her with the dumbbell. As I have said, Mr Randall was present throughout the pre‑recording of AB's evidence, and he could not have been in any doubt about her evidence in relation to that incident. He could not have failed to understand the allegations which were made. Yet he did not raise any issue at that time challenging his pleas of guilty on the basis he did not understand the nature of the allegations or did not intend to enter pleas of guilty and did not accept the factual basis of the convictions as alleged by AB in her evidence. I am satisfied that following the pre-recording of AB's evidence Mr Randall must have been in no doubt as to the factual basis of the counts to which he had pleaded guilty which, except for the incident alleging she was struck with a torch, were essentially unchallenged during AB's cross‑examination.
[172] ts 129 ‑ ts 131.
I accept that Mr Randall may have felt under some pressure at the time to enter pleas but I do not accept he was improperly pressured or forced to enter pleas of guilty. I do not accept his evidence that he was confused or did not properly understand what he was pleading guilty to. I do not accept his evidence that Mr McKenzie only told him he was pleading guilty to the North Coogee incidents.
I am satisfied that by entering pleas of guilty to each of counts 1, 3, 4, 5 and 6 and a plea of not guilty to count 2, the sexual penetration charge, he did so fully understanding what he was pleading guilty to and intending to enter pleas of guilty. His pleas of guilty and the plea of not guilty to count 2 are consistent with his discussions with both Ms Gilders and Mr Kraus as to the strength of the State case regarding the violence charges and Mr Randall's consistently and strongly expressed instructions to each of his counsel that he was not guilty to count 2.
I accept Mr McKenzie's evidence that during his meeting with Mr Randall in the District Court detention centre prior to the court hearing on 30 September 2022 to pre‑record the evidence of AB, Mr Randall appeared to understand the nature of the allegations to him after they discussed the allegations in relation to each count,[173] and Mr McKenzie left the conference to go into court with the understanding that Mr Randall would plead not guilty to each count on the indictment and the pre-recording would be undertaken in relation to each of the six charges.[174]
[173] ts 589.
[174] ts 589, ts 597, ts 612.
I am satisfied Mr Randall could have been in no doubt that the evidence of his convictions would be adduced as evidence at his trial and there would be evidence adduced as to the factual circumstances of the offences he admitted he had committed against the victim.

27 April 2023 - Section 31A Evidence Act application

Following the pre-recording of the victim's evidence the next hearing at which the accused appeared was before Massey DCJ on 28 February 2023 at which Mr McKenzie again appeared on behalf of the applicant. The purpose of the hearing that day was to determine the State's s 31A Evidence Act1906 (WA) application in relation to the convictions on counts 1, 3, 4, 5 and 6. However, because the applicant's counsel had not prepared for the hearing the application was adjourned to a further hearing on 27 April 2023.
The hearing proceeded before Bowden DCJ. Mr Randall was present throughout that hearing.[175]
[175] ts 179.
In his ex tempore reasons for decision Bowden DCJ clearly explained the basis of the State's application and how it would seek to rely upon other acts of violence surrounding the offending the subject of count 2 to support the State's case.[176] It would have been clear to the applicant from the discussion with counsel and from the judge's oral reasons for decision that the State was relying upon his convictions on counts 1, 3, 4, 5 and 6 to demonstrate or prove that the applicant's relationship with the victim was marked by a course of violence by him towards the victim.
[176] ts 183, ts 187.
At neither of the hearings on 28 February and 27 April 2023 was the court informed that the applicant had any concerns about being convicted on his own pleas of guilty to five counts on the indictment.
Although Mr Randall gave evidence in cross-examination that he did not really understand Bowden DCJ's reasons and thought that the judge had dismissed the s 31A Evidence Act application and that the State were not permitted to lead the evidence of the convictions and the facts of the convictions,[177] and while I readily accept to a lay person the nature of propensity evidence can be difficult to properly understand, Bowden DCJ's reasons, with respect, make it very clear the evidence was relevant and admissible and how, and the limits on how the evidence could be used. It was made clear the evidence was able to be led by the State.[178]
[177] ts 532.
[178] ts 182 - ts 188.
Whether or not he did understand at that hearing that the violence convictions could be used by the State at his trial as relationship evidence, Mr Randall accepted that closer to the trial dates he did find out the evidence of the violence charges would be used by the State at his trial.[179]
[179] ts 533.

The trial - 6 to 9 June 2023

The matter then proceeded to trial over four days from 6 June to 9 June when the jury returned a unanimous verdict of guilty to count 2 on the indictment.[180] Both in his opening address to the jury the prosecutor[181] and in her charge to the jury[182] the trial judge, outlined in detail the factual circumstances relied upon by the State in relation to the offending the subject of counts 1, 3, 4, 5 and 6 and how it was able to be used by the jury in determining whether the applicant was guilty of count 2, the allegation of sexual penetration without consent. Defence counsel, Mr McKenzie, in his opening address conceded that the jury might think that the applicant had been violent to AB.[183] Therefore, after the prosecutor's opening address to the jury and during the trial the accused would have been in no doubt about the factual circumstances relied upon by the State relevant to his convictions on counts 1, 3, 4, 5 and 6. Except for the note he provided to his counsel, Mr McKenzie, wanting the trial judge to emphasise that Mr Randall had not agreed with the facts relied upon to support the convictions, based on the victim's evidence, he raised no concerns with the court as to his purported lack of understanding of the charges to which he had pleaded guilty.
[180] ts 377.
[181] ts 204 - ts 202.
[182] ts 325 - ts 338, ts 349 - ts 357.
[183] ts 216.
In cross‑examination Mr Randall gave evidence that he did not agree with the facts which were alleged at the trial, based on the complainant's evidence, and that he had not pleaded guilty to those facts and that he kept asking Mr McKenzie to ask more questions and kept bringing it up with Mr McKenzie, giving him eight pages of notes. He said he also wanted Mr McKenzie to apply to abort the trial, but Mr McKenzie would not bring the matters up.[184] However, Mr McKenzie did not give evidence that he was instructed to apply to abort the trial.
[184] ts 532 - ts 534.
As was his right the applicant elected not to give or call evidence in his defence at the trial. I accept Mr McKenzie's evidence in par 20 of his affidavit sworn on 8 February 2024[185] that he advised the accused to give evidence but against that advice the applicant chose not to give evidence.
[185] Exhibit 8.
The trial judge started charging the jury in the afternoon of 8 June. She completed her charge to the jury the following day on 9 June. After the jury were sent home partway through the charge on 8 June there were discussions between the trial judge and counsel in which submissions were made as to various matters to be addressed in the charge. While the trial judge was discussing matters with Mr McKenzie he was handed a note by Mr Randall.[186] On the morning of 9 June, before continuing with her charge, Mr McKenzie informed the trial judge that the main thing Mr Randall was concerned about was that he did not plead guilty to the violence offences on the basis of the allegations made by the complainant/victim in her evidence. Mr McKenzie informed the trial judge that Mr Randall wanted her to emphasise that he had not agreed with those facts.[187] Mr McKenzie did not give evidence that Mr Randall instructed him or asked him to apply to abort the trial. Nor was Mr McKenzie cross-examined to that effect.
[186] ts 341.
[187] ts 346.
On 9 June after discussion with defence counsel the trial judge, Burrows DCJ, ordered a pre-sentence report and a psychological report and noted that she was also going to have to sentence the applicant in respect of the counts to which he had pleaded guilty before the trial,[188] noting that as the applicant had not given evidence at the trial he would need to give evidence if he disputed the facts relied upon by the State in support of the convictions on counts 1, 3, 4, 5 and 6. She queried whether a trial of issues would be required.[189] Defence counsel, Mr McKenzie, informed the trial judge that he knew the applicant's attitude to the charges and although he had not specifically taken instructions, he thought that a trial of issues was likely.[190] Following discussions as to how the matter was to proceed the prosecutor, Mr Tooker, said he would draft a statement of material facts based on AB's evidence to allow Mr McKenzie to go through the proposed facts with the applicant to determine what could be agreed and what would remain in issue.[191]
[188] ts 378 - ts 379.
[189] ts 379.
[190] ts 380.
[191] ts 381.
The matter was adjourned to 1 September 2023. The applicant also appeared at that hearing. For the first time the court was informed the applicant wanted to make an application to change his pleas of guilty to not guilty.[192] In those circumstances Mr McKenzie informed the court he was in a position of conflict and alternate counsel needed to be instructed.[193] The matter was then adjourned to the duty judge list on 14 September.
[192] ts 384.
[193] ts 384 - ts 387.

Findings

In both his evidence-in-chief, and in particular in his cross‑examination, Mr Randall frequently answered questions in a non‑responsive way. He was determined to maintain his position that he had been pressured into pleading guilty when he did not properly understand what he was pleading to and when he was not properly legally represented and pressured to enter pleas. Many of his answers were in the form of submissions intended to advance his position. He frequently prevaricated when answering questions in cross‑examination. When he conceded matters he did so reluctantly answering 'Maybe' or 'Possibly'. No matter the question he was determined to answer in a way which attempted to justify his belief he had been unfairly dealt with. His answers were frequently unconvincing and implausible. I find him to generally be an unsatisfactory and unreliable witness, particularly as to the evidence about what was discussed with his counsel. Where there is a conflict between the evidence of the witnesses who have previously acted for Mr Randall and his evidence, I generally prefer the evidence of those witnesses.
I reject the applicant's evidence and explanations in his affidavits. Specifically, I do not accept that the first time the facts were read out was during the trial. As I have previously observed, the nature of the allegations and the facts upon which the allegations were based were first read out in court in the bail application hearing before Bowden DCJ on 7 December 2021, albeit in summary form. The nature of the allegations were also referred to in the directions hearing before Bowden DCJ on 27 April 2023 when it was ruled that the evidence of the convictions on counts 1, 3, 4, 5 and 6 and the facts of the offending were relevant as background or relationship evidence at the trial.
At the pre-recording on 30 September 2022, the day on which the applicant pleaded guilty to the five counts of violence, the victim gave extensive evidence-in-chief regarding the offending the subject of counts 1, 3, 4, 5 and 6 and was extensively cross-examined by Mr McKenzie regarding her evidence. The applicant could have been in no doubt by that point of what the allegations to which he had pleaded guilty were and the factual basis of them. Yet he raised no issue at the time. The first time any issue was raised by the applicant with the court was after he had been convicted at trial and when the matter was adjourned to a trial of issues in relation to any factual dispute regarding the convictions for the violence offences.
I accept Ms Gilders' evidence that she had a long meeting face‑to‑face with the applicant at Albany Regional Prison on 5 August 2021 in which she discussed and provided advice to the applicant regarding the then seven counts and the amended SOMF during which the applicant asked her to lower her voice so that others around could not hear the sexual allegations against him. I also accept Ms Gilders' evidence that when she first met with the applicant via Skype on 6 April 2021, having been informed by him that his previous counsel had not read him the facts, she read the statement of material facts for each offence to him and explained the elements of each charge to him. Further I accept Ms Gilders' evidence that during a Skype visit with the applicant on 17 January 2022, the applicant made admissions to the offending the subject of counts 4 - 6 but that the applicant later, on 21 March 2022, informed her that he wanted to take all charges to trial even though he maintained he had assaulted the victim but not in the manner alleged.
I also accept Mr Kraus' evidence that the applicant informed him that he agreed with counts 5 and 6 and agreed that he did assault the victim by hitting her in the forehead with a hammer and did threaten to kill her because she pushed every button he had. I accept that the applicant instructed Mr Kraus he would plead guilty to counts 4, 5 and 6 and not guilty to counts 1, 2 and 3 but later changed his mind as the jury panel was being brought into court and said he did not want to plead guilty to anything after Mr Kraus had informed the court that pleas of guilty would be entered to counts 4, 5 and 6.
I accept Mr McKenzie's evidence that he had a long meeting with the applicant in the detention centre of the District Court building on 30 September 2022, the day the applicant entered pleas of guilty to five counts on the indictment, and during which Mr McKenzie took full instructions from the applicant regarding the factual circumstances of each incident the subject of those five convictions. I accept Mr McKenzie's evidence that during that meeting the applicant instructed him that he would maintain not guilty pleas to all counts although Mr McKenzie had recommended he plead guilty to counts 1 and 3 - 6, but then changed his mind and in the dock of the court instructed Mr McKenzie he would plead guilty to counts 1 and 3 - 6, following which he was arraigned and entered those pleas together with a plea of not guilty to count 2.
I find the applicant was fully aware of the nature of the allegations against him and of the factual circumstances of each offence as alleged by the State when he entered the pleas of guilty, even though the facts were not then read to him. I find the accused did understand the nature of each charge to which he pleaded guilty and intended to admit guilt by his plea of guilty. Each plea of guilty was unequivocable, as is conceded by defence counsel,[194] and was not made in circumstances suggesting that it was not a true admission of guilt.
[194] Defence outline of written submissions, par 27.
This is not a case where it is suggested the pleas of guilty were obtained by improper inducement, fraud, intimidation or the like. Neither is it a case where upon the evidence of the victim given at trial the accused could not, in law, have been guilty of the offence to which he was convicted on his own plea of guilty. On the evidence it was a strong State case in relation to each count on the indictment to which the applicant pleaded guilty and there was a good prospect, based on the evidence of the victim and the other corroborating evidence, had pleas of not guilty been maintained, the applicant would have been convicted of all counts after trial.
In my view this is a case of a person, having been convicted of a serious offence after trial, now perhaps appreciating the seriousness of his overall offending and regretting entering pleas of guilty wanting to falsely attribute blame for his voluntary pleas on bad or inadequate advice or improper pressure. It is only when he was convicted after trial, and when an issue was raised as to the facts of the offending to which he pleaded guilty, that he sought to challenge the facts of the offending as described by the victim in her evidence, to seek to reduce the seriousness of the violent offending, rather than the convictions themselves. Of course if the statement of material facts cannot be agreed in relation to significant or important aspects of the facts which will impact upon the criminal culpability of the applicant and the seriousness of his offending for sentencing purposes, there will need to be a trial of issues. There can only be a trial of issues if the applicant chooses to give evidence, otherwise, the sentencing judge is likely to be able to make findings of fact based on the victim's evidence given during the pre‑recording which was played at the trial before the jury.

Once a plea of guilty is entered there is a discretion to allow a change of plea to not guilty if the person establishes that there has been a miscarriage of justice. No miscarriage of justice has been established in this case.
Significant prejudice might be caused to the victim if the convictions were set aside and the matters thereafter proceeded to a further trial before another jury with the possibility that the victim may need to be recalled to give further evidence about the charges. The incidents of the counts on the indictment occurred over five years ago. The victim gave evidence at the pre-recording on 30 September 2022, nearly 2 ½ years ago. Her memory will necessarily have been impacted by that delay. Given the nature of the allegations, she is likely to be further traumatised if it was necessary for her to give further evidence. Indeed, she is likely to be suffering ongoing anxiety knowing these matters are yet to be resolved. Although a fresh trial may be able to proceed by the State just relying on the pre-recorded evidence of the victim, it would still be necessary to call other witnesses to give evidence about what they heard or witnessed at the time and their memories would necessarily be impacted by the delay.
Those circumstances underline the importance of the public interest in the finality of proceedings.
As was observed in Meissner v The Queen,[195] referred to in Snook v The State of Western Australia (No 2):[196]
… The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice or improper pressure.
[195] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132.
[196] Snook v The State of Western Australia (No 2) [105].
In my view that is the situation here. The applicant has not discharged the onus on him to show that a miscarriage of justice has occurred and that he should be permitted to change his pleas in circumstances where he had legal representation before, and at the time of, entering the pleas.
The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
19 MARCH 2024