Tracey & Anor v The Queen; Tracey v The Queen

[1990] HCATrans 45

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H6 of 1989

B e t w e e n -

PHILLIP TRACEY and

STEPHEN TRACEY

Applicants

and

THE QUEEN

Respondent

'

Office of the Registry

Hobart No H7 of 1989

B e t w e e n -

DIANE TRACEY

Applicant

and

THE QUEEN

Respondent

Applications for special

Tracey
MR W. AYLIFFE:	If the Court pleases, I app~ for Phillip Tracey and

leave to appeal

MASON CJ DAWSON J TOOHEY J GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON TUESDAY, 13 MARCH 1990, AT 10.17 AM

Copyright in the High Court of Australia

HlTl/1/FK 1 13/3/90

Stephen Tracey in application H6 of 1989_;; (instructed by

Wallace Wilkinson & Webster)

MR W.M. HODGMAN, QC: May it please Your Honours, I appear with

my learned friend, MR C. WEBSTER, in the application

of Diane Tracey, H7 of 1989.	(instructed by
Wallace Wilkinson & Webster}

MR D. BUGG:  May it please the Court, I appear with my

learned junior, MR M. STODDART, in both applications for

the respondent.	(instructed by Director of Public
Prosecutions)

MASON CJ:  Mr Ayliffe.

' MR AYLIFFE: If Your Honours please, I have prepared a

chronology which may be of some assistance to the

Court in following the submissions which I make in

relation to these applications.

MASON CJ: Yes. Thank you.

MR AYLIFFE:	I hand those up.
MASON CJ:	Do you have an outline of argument as well?
MR AYLIFFE:	Your Honour, I have in fact filed an outline of

my submissions on Thursday of last week. It is a
document which is simply headed, "Submissions",

Your Honour, and outlines my central submissinns so

far as these applications are concerned.

MASON CJ:  We appear to have submissions filed on behalf of

Diane Tracey, Mr Hodgman's client, but I am not sure

that we have submissions filed on behalf of your

client.

MR AYLIFFE:  Your Honour, I understood them to have been filed

on 8 March 1990. I imagine they were filed by fax.

MASON CJ: None of us have them, Mr Ayliffe.
MR AYLIFFE:	Your Honour, I will have seven copies run off at this stage. Certainly, Your Honour, I am unable to
explain that.  I took steps, as did my instructing
solicitor, to ensure that these documents were filed
on, as I·say, 8 March 1990.  My instructing solicitor
tells me that they have been filed, Your Honour.

,;~ :

MASON CJ: Well, that may be so. · -It-does not help us very much

as we do not know what the contents are, Mr Ayliffe.

But if you could give us the sketch outline of the case you are proposing to present.

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Tracey

MR AYLIFFE: Certainly, Your Honour. Your Honour, in this

case it is my submission that a plea of guilty was
entered by my clients, not on the basis of an
acknowledgement of guilt, but because of several
other matters which do not go to the merits of

the issue of guilt.

Firstly, Your Honours, it is my submission

that these pleas were entered primarily because

legal aid was refused on, what was a, in my submission,

wholly wrongful basis. That is, a juryman - - -

MASON CJ:  If I can interrupt you, can you identify for us what

is the special leave point, or points, that you say

the application raises, because the Court is not

going to go into this matter in great depth unless it

is satisfied that there is a case for the grant of

special leave?

MY AYLIFFE: If Your Honour pleases. Your Honour, I submit that

there are important questions so far as public

importance and the administration of justice, both

specifically so far as this case is concerned and

generally. Your Honour, the points which are raised

in my submission,by this appeal are firstly issues

of what is counsel's duty to clients charged with

serious criminal matters when legal aid is withdrawn on

an arbitrary, and what appears to be clearly a wrongful

basis, that is, a conmrunication by a juror with the

Crown which was then conmrunicated to the legal aid

office. Nothing more than really, in my submission,

rumours, Your Honour.

Secondly, what are counsel's duties when counsel

is effectively advising against aid being granted

when his clients are instrucdng that they are innocent

of the charges, that is, that there appears to be some

conflict between counsellor's personal views in relation

to the matter, which are conmrunicated to the legal aid

office. Those communications of personal views not

being relayed to the accused persons, or to counsel's

clients, where counsel is in a position of having

to tell legal aid on the one hand that he believes

ultimately that they would be convicted, where, on

the other hand, he is representing these people on the

basis that he is going to be asserting that they are

not guilty of the charges.

My submission is that is an important issue

and the issue arises as to whether the accused, that

is the clients of counsel, ought to be made aware that

counsel is making these conmrunications to legal aid as

a matter of natural justice in the obtaining of a

trial.

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Tracey

TOOHEY J: Mr Ayliffe, the questions as you formulate them

may well be important questions, but they cannot be

isolated from the circumstances of the present

application and, in particular,from the findings of

the Court of Criminal Appeal.

MR AYLIFFE:  I accept that, Your Honour, but in my submissions,

the findings of the Court of Criminal Appeal do not

preclude this Court from entering on a consideration

scrutiny of those issues.

MASON CJ:  But the first question is this, is it not, what is

the appropriate principle governing the jurisdiction

of the Court to go behind a conviction on a plea of

guilty, particularly when the intermediate court of
appeal has held that the plea of guilty was a plea entered after consideration and with deliberation?

MR AYLIFFE:  With respect, Your Honours, I would submit that the

Court of Criminal Appeal has defined the test as to

when a conviction in such circumstances can be set

aside on a basis which is too narrow.

MASON CJ: Well, that is the real point, is it not, in this

special leave application?

MR AYLIFFE:  It certainly, Your Honour, is one of the

fundamental points.

MASON CJ: Well, it is the primary point, is it not? Do we

not have to deal with that first?

MR AYLIFFE:  I would certainly accept, Your Honour, that it is

the primary point so far as the applications are

concerned.

MASON CJ: Well, what is your submission,on that point?

MR AYLIFFE:  My submission is, Your Honour, that firstly -

if I could take the decision of His Honour

Mr Justice Wright in relation to the decision.

His decision indicates in his findings that the

plea of guilty -this is at page 1106, line 20 or

thereabouts, of the appeal books. He states this:

I am fully persuaded that their final

decision to plead guilty was largely

prompted by the refusal of legal aid for

a re-trial.

And, in so saying or in so finding, it is my

submission, with respect, Your Honours, that His Honour

has opened the way for an examination as to why it was

that the applicants did, in fact, lose legal aid

and what happened between losing legal aid and

entering their pleas of guilty.

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Tracey

MASON CJ:  But what His Honour says only opens up those

issues. If, in fact, you can establish as a

proposition that the circumstances in which the

Court will go behind a conviction on a plea of guilty is so wide as to permit those issues to be

raised. Now what do you say the principle is?

MR AYLIFFE:  The principle, Your Honour, in my submission,

is, if there have been circumstances which amount to a

miscarriage of justice, then in those circumstances

a court can go behind the plea of guilty and is

entitled, in those circumstances,to set aside a

a conviction based on a plea of guilty.

MASON CJ: Whenever there is a miscarriage of justice?

MR AYLIFFE:  Whenever there is a miscarriage of justice,

Your Honour, and certainly if there has been a

miscarriage of justice which appears to be serious,

and it is my submission - - -

McHUGH J:  But the court accepted that proposition as correct,

did it not?

MR AYLIFFE:  His Honour Mr Justice Nettlefold referred to

MURPHY's case and appeared to accept that that proposition

was correct. Their Honours the Chief Justice and

Mr Justice Wright did not, in fact, formulate what the

test was, so far as their judgments were concerned, and

it is my submission, with respect, Your Honour, that

they have formulated the tests too narrowly.

McHUGH J: No,but, the Chief Justice decided the case having

regard to the way it was argued, did he not? If you

look at page 1076, line 17 - - -

MR AYLIFFE:  I am looking at 1076, Your Honour.

McHUGH J: Yes, the Chief Justice at line 17 says:

By the terms of their applications for

leave to appeal ..... each applicant has assumed

the burden of satisfying this Court that,
amongst other things, they entered those

pleas against their will.

That was the factual issue upon which the case was

fought before the Court of Criminal Appeal, was it

not?

MR AYLIFFE: Well, with respect, Your Honour, I submit that

is not so. It certainly may have been one of the

factual issues, but it certainly was presented to

the Court on the basis that even if it be accepted

as the Court accepted that there was an instruction

to counsel to make concessions which were unsupported

by instructions and appear to be almost a deeming

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Tracey

situation, the case was fought on a much wider basis

than that. The case was also fought on the basis that,

in any event, even if the Crown proposition on that

point is correct, the other important factors which

appear to be common ground so far as this appeal is
concerned, amount to a serious miscarriage of

justice.

McHUGH J: Yes, but, all the factors that you mention are

background factors. The critical finding of the Court

of Criminal Appeal was, was it not, that your clients

had made a free and voluntary choice. They had

weighed up various factors and they had decided to

plead guilty with some deliberation, and after some

time.

MR AYLIFFE: Well, with respect, Your Honour, I would submit

that the learned Chief Justice, in that passage that

Your Honour has pointed to, has formulated the test

on a too narrow a basis. He is there saying that if

it transpires that there was no question of them being

unaware of what they were doing, but their decision

to plead guilty was, in fact, a conscious decision,

then the door is shut as far as the Court going

behind such a decision to plead guilt, when, in fact,

in my submission, the principles of law are wider than

that where there are circumstances even if there has

been a decision to plead guilty which has been a

conscious decision but taken for a number of extraneous

reasons,unassociated with guilt, in those circumstances

the Court is well equipped to go behind the plea. And

if it amounts to a situation where there has been an

inducement, or where there have been important extraneous

matters coming to bear on the decision of the accused

at the time that they elect to plead guilty, then the

Court should examine those extraneous considerations to ensure that there has not been a miscarriage of

justice.

The test is a wider test. It does not boil down,

in my submission, to an accused having to have been

Q.V&-r borne._ in the entry of a plea of guilty.	It is
GHIRON's	case,	for instance, and my submission

MURPHY's case and McINNIS's case in the High Court

demonstrate that a court reserves to itself the right

to go behind a plea of guilty where the fundamental

provoking factors have been unassociated with guilt

and indicate that the entry of the plea is not being

based on an admission of guilt or an acceptance of

guilt, but being based on other extraneous matters,

even if that plea, as CHIRON's _ case, was entered

freely and voluntarily by the accused person but for

extraneous reason unassociated with guilt. In my

submission, with respect to the Court, it is very

important, that pleas of guilty be founded on an

acceptance of guilt, and it is very important, in

my submission, that the system of criminal justice

HlTl/6/FK	6	MR AYLIFFE	13/1/90
Tracey

ensures that accused persons, especially persons

accused of serious crimes, are entitled to have a

trial on the merits, and that the questions of

guilt or innocence should be primarily determined
on the basis of an examination of the merits of
the case, rather than a combination of extraneous
factors unassociated with guilt, forcing young
men, as is the case here, 21 and 17 at the time of
the trial, into accepting guilt, on the basis
of these factors such as the arbitrary and wrongful

withdrawal of legal aid and the failure of counsel,

in several important aspects, to discharge his duty

to my clients.

MASON CJ:  Mr Ayliffe, there are a number of authorities that

emphasize that it is only in exceptional cases that

the Court will go behind a conviction on a plea
of guilty, and there are other cases where the Court,

from time to time,says that it will not review the

advice that is given by a legal practitioner to the

client. Now, how do you deal with those cases which

appear to be against the wide-ranging discretion that

you are contending for?

MR AYLIFFE: Well, if I could firstly, Your Honour, refer to

McINNES's case. In McINNES's case there is the - - -

MASON CJ:	Now, what is the reference to McINNES?
MR AYLIFFE:	If Your Honour will excuse me for a moment, it is

143 CLR 575. There,Your Honours, as you will see,

an accused person was charged with rape. He made

arrangements to be represented by counsel. Counsel,

in fact, lost the legal aid application form; the

legal aid application form was then recovered - I am
sorry, I am wrong on that - a fresh legal aid form

was there prepared; that legal aid form was given

to counsel; it. was submitted to the Legal Aid

Commission and the day before the trial was due to

start legal aid was refused. The barrister in those

circumstances indicated that he was not prepared

to go on with the case because he would be unfunded.

The accused went before His Honour the trial judge and asked for an adjournment on the basis of what had

happened, he also indicated to the trial judge that
he may be in a position to raise the cost of

defending himself from relatives and friends.

He was therefore simply put in the position where,

because of a combination of circumstances as, in fact,
is the case here, he was going to be deprived of the very

important benefit of counsel, a matter, in my submission,

of crucial importance, so far as a fair trial was

concerned, and the Court in that case, including a

judgment of Your Honour the Chief Justice, was very	sympathetic to his situation~ and,in my submission, it
was only because the evidence against him was, to an

HlTl/7/FK	7	13/3/90
Tracey

extent, overwhelming or extremely strong, that he

failed in his application. If I could take you

to the judgment of Your Honour the Chief Justice,
with respect,at page 582 of that case, Reading

from the top of the page, Your Honour said:

Although I appreciate the importance

of the factors which led the trial judge in the present case to refuse an adjournment -

if I can interpolate there, His Honour refused the

adjournment because the complainant was becoming

upset by the delay in trial: that seemed to be one
of the primary purposes; the case had been listed and

it was going to interfere with the speedy administration

of that particular court -

I am of the opinion that he failed to attach sufficient importance to the
desirability of the accused's case in answer

to a very serious charge being presented by

counsel. The importance of representation

by counsel or solicitor in a serious criminal

charge cannot be too highly stressed. Had the

trial judge recognized its importance he would

have perceived that the applicant should have

been allowed to pursue all avenues of obtaining

legal aid to their conclusion. The factors

called in aid by his Honour were not so

overwhelming as to require that the trial should

proceed without the accused having the benefit

of counsel. Here the accused himself had not

been slow to pursue his rights; it was not suggested that the responsibility for seven

months' delay rested with the applicant.

Going down to the next paragraph Your Honours will

there see:

It was conceded by the applicant's

counsel that he had to show something more

than that the adjournment was wrongly refused

in order to make out a miscarriage of justice

and thereby bring the cases within s.689(1).

MASON CJ:  But it was not a case of a conviction on a plea of

gnilty.

MR AYLIFFE:  I am sorry, Your Honour. He was convicted on all

counts and sentenced to six years imprisonment.

McHUGH J: But on a plea of "not guilty".

MR AYLIFFE: Certainly, Your Honours. It was a plea of "not guilty".

McHUGH J: There is a world of difference between the two cases.

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Tracey

MR AYLIFFE: Well, Your Honours, I submit that in reality that

this particular case contained very similar circumstances

to the circumstances which my clients face, that is, rather than go on and inadequately defend themselves,

my clients were put in the position where they had no

alternative but to accept the suggestion that they

plead guilty because they were going to be without

representation. So, I accept what Your Honour says,

of course, with respect, but nevertheless the principles

enunciated in that case are important so far as my

submissions are concerned.

Your Honour, could I also refer to CHIRON's case?

Your Honours, that is a case where a trial was
commenced on a charge of rape; half-way through, or some

way through the trial there was an application by the

Crown to admit similar fact evidence; the application

was successful. As a result of that counsel

advised his client that he had very little chance of
success and purely because of the ruling, or

primarily because of the ruling that the similar fact

evidence be allowed and because of the advice of

counsel, the accused changed his plea. The court in

that case held that the similar fact evidence had been

admitted wrongly and that it was a miscarriage of
justice that a plea of guilty should be entered on the

basis, not as an acknowledgement of guilt, but because

of a combination of circumstances where this wrongful

ruling had gone against him. That is, the plea of guilty

simply flowed directly from a wrong ruling in law and

not as an acknowledgement of guilt.

If I could take Your Honours to the judgment of

the Chief Justice, Chief Justice Street, page 220,
Your Honours. There the learned judge stated:

The decision to admit this evidence

was recognized by the appellant's counsel

at the trial as being of such significance

that, according to counsel's evidence before us,

he told the appellant "something ... to the

effect that I could try, but not successfully,

to defend; that is to say that I could put up

an attempt".

That is after the ruling had gone against them.

Counsel was asked: "Had you indicated to him -

et cetera. His Honour said:

It is not necessary to canvass the details

of what was said. Counsel appearing at the

trial formed the same impression as the

appellant, and this corroborates the appellant's

claim as to his own state of mind.

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Tracey

The evidence called on the hearing of

the appeal leaves no room for doubt but that
the erroneous decision to admit evidence
of similar facts, with the consequential
significance attaching to it in the mind of
the appellant as a result of his counsel's
expression of opinion and the trial judge's

reference to "sudden death", was the

predominating factor which lead to the

appellant changing his plea, and thus

admitting guilt of the crime charged against him.

(Continued on page 11)

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Tracey

MR AYLIFFE (continuing): The learned judgment of the

Chief Justice at Common Law Nagle flows on page 220.

He said:

However, this is not an end of the matter,

for bys 6 of the CRIMINAL APPEAL ACT, 1912,

this Court is enjoined to allow an appeal "if

it is of opinion ... that on any other ground

whatsoever there was a miscarriage of justice ... "

The discretion given to the Court is wide, as

Sholl J observed in RV MURPHY:

That is, it is a mistake, in my submission, to try

and define the circumstances too narrowly or to

try and define the circumstances with too much

precision. The discretion is wider, in my submission,

on a close analysis of the case, than perhaps some of the phrases which have been employed in some of

the judgments would initially suggest.

Most of the reported cases can, it is true

this is at page 221F -

be fitted into the principles formulated in

RV FORDE. But they should not be regarded as exhaustive of all possible cases of miscarriage of justice. They do not cover, for example, a case where an accused person, against whom a prima facie case exists, but

who denies and has never admitted his guilt,

is induced by threats, e.g. of a fellow

accused, or of a police officer, to plead

guilty where otherwise he would have pleaded

not guilty. In such a case there would, in

my opinion, be a miscarriage of justice, unless

perhaps the case against him were overwhelming,

and there should be a new trial.

And the court going on to page 222, referred to

MRAZ V THE QUEEN, the well-known judgment of Fullagar, and decided that that had applicability,

even though it was a case based on the criminal

proviso that an accused person should not be
permitted to lose a chance of acquital and the

court also referred to:

the long tradition of the English criminal

law that every accused person is entitled

to a trial in which the relevant law is

correctly explained to the jury and the

rules of procedure and evidence are strictly

followed. If there is any failure in any

of these respects, and the appellant may

thereby have lost a chance which was fairly

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Tracey

open to him of being acquitted, there is,

in the eye of the law, a miscarriage of

justice. Justice has miscarried in such

cases, because the appellant has not had

what the law says that he shall have, and

justice is justice according to law.

And then at pa~agraph F, Your Honours:

True it is that the trial procedures

were correctly followed. It was as a result

of the appellant's own decision, after advice

from his counsel, that he altered his plea

and did not persist with his right to require

the Crown to prove to a jury his guilt. But

this course resulted because of the views

wrongfully expressed by his Honour as to the

admissibility of the evidence the Crown

proposed to lead of "similar facts".

His Honour Mr Justice Lee was in dissent, but
Your Honours may find some assistance so far as

his judgment is concerned. At page 236, the learned

judge there reviewed McDERMOTT V R and

RV LEE, as to questions of an accused will being

overborne or an accused acknowledging guilt on

the basis of inducements, and His Honour referred

to the fact that if a statement of guilt was:

preceded by an inducement held out by a person

in authority and the inducement has not been

removed before the statement is made -

that confession of guilt is wrong. And in my

submission this case raises facts wherein my clients

clearly had inducements put before them, combined

with an overriding, very unjust set of circumstances
or context, which again provided a further impetus
to them, as young men, to plead guilty, rather than

to maintain their innocence which they have done

thus far, through one, an aborted trial.

TOOHEY J:	Mr Ayliffe, the difficulty with that proposition is
that the Court of Criminal Appeal, in the rather

unusual circumstances of this case, heard the

present applicants and heard the solicitor and reached

findings of fact.	In the case of the Chief Justice
that he was:

not satisfied that in any material sense the

applicants pleaded guilty against their will.

That is at page 1078 and in the case of

Justice Nettlefold at page 1090 that:

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one cannot be satisfied, ..... that the plea

did not proceed from a genuine consciousness

of personal guilt.

Now, what are you inviting this Court to do in

respect of those findings? To proceed on the basis

that those findings are warranted, but nevertheless

it is an appropriate case for the grant of special
leave or in some way are you seeking to attack

those findings?

MR AYLIFFE: 

Your Honour, I seek to attack those findings

to this extent. Turning to the decision of
His Honour the Chief Justice, there is the passage

that, in my submission, is a too narrow a definition

of the test.  That is the passage that we have referred

to at page 1076. And then at page 1078 His Honour
says:

I am not satisfied that in any material

sense the applicants pleaded guilty against their

will.

Once again, in my submission, that is not the test.

The test is whether they have pleaded guilty by

reason of extraneous reasons unassociated with guilt

which make the standing of the plea unsafe. Then His Honour the Chief Justice at page 1079 states:

The applicants also made a number of

miscellaneous complaints about the withdrawal

of legal aid and the conduct and advice of

their solicitor, but I am quite unpersuaded

that they provide grounds for a conclusion

that a miscarriage of justice occurred. In my submission, what His Honour has done has

been to too narrowly define the test to the extent

that there must have been an overborning of the will

of the accused when they entered the plea of guilty.

If that has not been demonstrated, then in those

circumstances the Court is not at liberty to go

behind the entry of plea.

McHUGH J: You start from the basis that your clients made

certain allegations against the solicitor. Those allegations were rejected and so far as the Court

of Criminal Appeal's judgment is concerned, you have

not got any findings of fact in your favour at all. the view that the Court of Criminal Appeal did not

accept your clients in any respect whatsoever.

MR AYLIFFE: I, with respect, accept that, Your Honour, to

this.exten~ my position is based on the Crown case,

so far as the evidence which was presented before

the Court of Criminal Appeal. My submissions are that

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even on the basis of the evidence of Mr Cooper,

the solicitor involved,and counsel involved, there

has still been demonstrated on the agreed ground, the

common ground, very substantial circumstances which

indicate that there has been a substantial

miscarriage of justice. And that is encapsulated in the views of His Honour Mr Justice Wright when

he says that he ,is quite satisfied that the plea

of guilty was prevoked or caused by the refusal to

grant legal aid.

DAWSON J:  But I am not sure that that does demonstrate that

there has been a miscarriage of justice. You seem
to assume that wherever there is an inducement to
plead guilty, a miscarriage of justice follows but ,
of course,people plead guilty very often because
of inducements to them to do so; the saving of

expense; the hope that they will receive some

consideration in sentence and so on.	So it cannot
be the mere fact of inducement.	If you say that it

has to be an inducement which causes an untrue confession

of guilt, well then one of course has to go into the
whole of the evidence, but there is not much basis

for saying that here.

MR AYLIFFE:  I do not say, with respect.Your Honour, that the

mere fact that a person decides to plead guilty

because of the hope for a lesser sentence or factors

such as that, would be sufficient to - - -

DAWSON J: Well then it is not every inducement which would

found an application such as this. What sort of an inducement do you say is the one .that is required?

MR AYLIFFE: Well I say, with respect Your Honour, that in

the circumstances of this particular case, the

court was c.onfronted with a situation of two young

men, aged 17 and 21, who had asserted their

innocence up until the day before the trial,

including going through a seven-day trial, I think

it was, on the charge of grievous bodily harm and
wounding.	They therefore had, until the day before,
completely asserted their innocence.	On that day

they became aware that the situation so far as the

obtaining of legal aid was hopeless, so they were not

going to have legal aid. At that time it was made

clear to them that their counsel would not be

prepared to defend them, in those circumstances, on

a trial, so they were put in the position where they

had to defend themselves, which on a serious charge

for these two young persons was an impossible burden,

in my submission. At the same time, the reason for

legal aid being withdrawn was a totally wrongful reason.

That is because legal aid had heard a rumour emanating

)	from a jury man on the aborted trial, that the jury
really did not mean to pronounce a hung verdict.

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The jury meant to actually convict them. So

legal aid took that rumour, went behind the verdict

of the jury and on that basis, not on a basis of

the merits of the case, refused them legal aid.

Now that was combined furthermore with two further

important matters, in my submission. Counsel did

not tell them -and this is an agreed position on

all the evidence- that they had an entitlement to

apply for an adjournment. In fact, the evidence was,

Your Honour, that counsel told them that they would

not be entitled to an adjournment.

DAWSON J: All of this goes to show why they made the decision

that they did, but why was it calculated to cause

an untrue confession of guilt?

MR AYLIFFE: All this was calculated, in my submission, to

in fact produce a situation where the surrounding

context that these young persons found themselves

in, was - - -

DAWSON J:  Why? They may have a more difficult trial being

unrepresented, but still they had their chance of

acquittal. Why was it calculated to cause an untrue

confession of guilt?

MR AYLIFFE: Well to go back to CHIRON's case, Your Honour,

there the decision to plead guilty was a deliberate

choice, as on the Crown case in the case found by
the Court of Criminal Appeal, is the situation here,

but it was founded dominately on the refusal of

legal aid and, in my submission, it is overwhelmingly

clear that the decision to refuse legal aid was

based on a wholly wrongful basis, that is, a

so-called camn.mi..cation by a jury man which went

behind the previous decision of the jury, to be

undecided, in relation to their first trial.

MASON CJ: I do not see that this Court is in a position to

review the propriety of the refusal of legal aid.

That seems to me to be an extraneous matter altogether.

All we are concerned with is that legal aid was not

made available. That may have had some impact on

your submission, but we are not in a position to

look at the propriety of the refusal to grant legal

aid.

MR AYLIFFE:  Your Honour, I do not submit that you are in a

situation where you have a role whereby you can

dictate or direct legal aid as to how they should

fulfil their role in the system of criminal justice

but what I do submit is this: if legal aid has

been shown,as is the case here, to have totally

miscarried on any reasonable basis, then that is

a factor which can go into the scales to determine

whether there has been a miscarriage of justice,

HITZ/5/CM	15	13/3/90
Tracey

whether this is, in my submission, the standard

of justice which the courts should be prepared
to accept as a proper dispensation of justice to

these young men.

MASON CJ:  I do not follow that, Mr Ayliffe. If we are

directing our attention to the plea that was entered,

the plea of guilty, whether or not that was

deliberate, it may be a factor to take into account

in some situations that it was induced, but it

seems to have been induced if it was induced at all

by the refusal of legal aid, by that refusal, not
by any circumstance as to whether or not it was

correctly refused or incorrectly refused.

"MR AYLIFFE:  Thank you for that, Your Honour. The submission

that I make is that when you are looking at the

overall issue, the crucial issue as to whether there

has been a miscarriage of justice, if it can be

demonstrated that this is not just a case where legal

aid was refused close to the trial, but this is a

case where legal aid was refused on a wholly wrongful

basis on any reasonable or fair standard, that is

an additional factor which is entitled to be put
into the equation, in my respectful submission, when

you consider that the overriding issue is whether these people received a standard of justice which

could be said, on any view, to be a fair or reasonable

standard of justice, and it is part and parcel, in

my submission, of the administration of criminal justice.

McHUGH J:  But in what context do you say the refusal of legal

aid is wrong? Were they acting in contravention of

a statute? Could your clients have got a mandamus

against the legal aid? Do they have any right? The

answer to those questions must be no, must it not?

"MR AYLIFFE:  I do not think they had a right to a prerogative

writ, Your Honour, I agree with what has fallen from

Your Honour.

McHUGH J: Well then how was it wrongful if it was just an

administrative discretion not to grant legal aid

in the circumstance of this case? The Legal Aid

Commission is entitled to take into account a lot

of things such as the expense of the trial, the

seriousness or otherwise of the issues involved.

"MR AYLIFFE: Well in this case, Your Honour, the letters which

were written by legal aid made it very clear that the

decision to refuse legal aid was based on the fact

that they had heard a rumour,which appears to have been

communicated by the crown prosecutor to Mr Cross at

the legal aid office, that the jury in the first

trial, which was a hung jury, did not mean to be hung,

they meant to convict on at least one of the charges.

HIT2/6/CM	16	13/3/90
Tracey

DAWSON J:  But what you say is that this revealed on the eve

of the trial was thoroughly demoralizing to your

clients who then accepted, against their will,

advice which if they had been in a better position

they would not have accepted.

MR AYLIFFE:  I am not sure I say that they accepted it against

their will_ because I cannot argue with the fact

that they entered a plea as a deliberate choice, but

certainly it was very demoralizing, Your Honour, and

that cannot be, on any objective standard - in my

submission, this Court is in a position to make

assessments of what is a fair reason and what is an.

unfair reason for the refusal of legal aid, if the

Court is prepared-to accept that by and large the

system of legal aid has been introduced to ensure

that poor persons are able to have a fair trial in

front of a judge and jury. This is a situation where

the circumstances conspired not to ensure that these

poor young men were entitled to have their day in court

and a trial but, in fac~ conspired to produce a
situation where overwhelmingly this 17 and 21-year-old

were going to be induced by the system, the various

elements of the system working together conspired to

produce very substantial pressure on these young men. to enter a plea of guilty. In fact, the circumstances

were further aggravated when the accused were being

arraigned, as the charges were put to them, having had

these various matters brought to their attention and

being in a state where they were clearly, on any view

of the evidence, in my submission -even on the worst

view of the evidence, so far as my case is concerned -

under very considerable pressure, at that vital point

during the trial counsel turned to them, after the

charge had been put to them, and said, "Plead guilty"

or "Just plead guilty", so the arraignment was even

interfered with as a result of an element of the

system, that is counsel, and counsel was interpreted

by my clients as instructing them to enter a plea

of guilty.

MR HODGMAN:  Page 532 is the reference there.

MR AYLIFFE: Yes, I will come to the references later, but I

do not think that there is any dispute about that.

The counsel deposes to that in his affidavit. The

counsel agreed with that completely during his
cross-examination and it was the case, on the affidavit

and in the cross-examination of my clients.

MASON CJ:  The findings are against you on that. The findings

were that your clients and the other applicant had

agreed, prior to the arraignment to enter a plea

of guilty.

MR AYLIFFE:  The evidence was -this is the evidence of Mr Cooper, which is, of course, the evidence which I am basing

HIT2/7/CM	17	13/3/90
Tracey

my submissions on for the purposes of this part

of my argument - that they maintained ·

their position of_innocence until the

morning of 11 August. Against their instructions,

on 8 August, that is the Friday afternoon, counsel

had entered into a discussion with the Crown

whereby there could be "an agreed set of facts",

which was an interesting situation in itself. That is

they were going to deem things to happen which had
not happened on either case, Just enough it appeared
to enable a finding of guilt to be made, but to
eliminate the chances of there being any strong

sentence.

Now on the morning of 11 August there was a

discussion where the solicitor accepts that my

clients still maintain their innocence, where he

virtually said this, "Look, legal aid has been

refused. Both systems have refused you" and the

reasons were given. Secondly:,. "I am not going to be

able to represent you. You are going to have to

represent yourself." Thirdly, "You cannot get an

adjournment. I do not think you will get an

adjournment·.-. In those circumstances I bring to your attention the fact that the Crown are willing to make concessions, if you will make concessions." That is, deem things to have happened which they said had not

happened, which they never accepted had happened, so

that this deal or this plea bargain could be done, and

he said that"the Crown would proceed against you on

a lesser charge charge of assault", which does not

appear necessarily to have been the situation. The

facts indicate that the Crown might lave only been

going on with assault in any event. He told them that.

They then went away without making any concession so

far as guilt is concerned - - -

1-:fASON CJ:  But the arrangement was that the mother was to ring

that afternoon.

MR AYLIFFE:  The arrangement was that the mother, who appeared

to be the spokesman for the three of them~ there was

no direct communication between counsel and my clients-

would ring them that afternoon.

MASON CJ: With a view to saying whether or not they would

plead guilty,

MR AYLIFFE:  The evidence of Mr Cooper was that on that

afternoon he rang the mother. He initiated the call.

And the mother said, "We will be pleading guilty".
Nothing more said. And then the next morning on
12 August, about 10 or 15 minutes before the trial
was due to commence, that was confirmed. "We will

be pleading guilty and the concessions can be made". So there was never, with respect to Your Honour 1 s

question, any detailed instruction where counsel got

HIT2/8/CM	18	13/3/90
Tracey

from his clients a statement of fact which supported
a plea of guilty. That was the situation. There

was never,in fact, apart from a 10 to 15 minute

meeting with the three of them, any direct attendance
or conference by counsel with his clients, my clients,
to produce a statement of facts.where they accepted

guilt in the true sense of the word. All that the

discussions of counsel demonstrated was that, given

the emotional pressure that they were under; given

the combination of the circumstances that they were

under, that they would be pleading guilty. That was

the Crown case -

McHUGH J:  But they do not have to plead guilty because of

the consciousness of guilt. There may be no

miscarriage of justice even though somebody pleads

guilty knowing that he is innocent.

MR AYLIFFE:  Yes , I would not disagree with that,with respect

Your Honour, but what I would say is, if there has

been a plea of guilty without a consciousness of

guilt, then the door is open to examine whether in

fact the plea of guilty does not flow from circumstances

wherein it could be said that they have got justice and my submission is this is one of those cases. They

did not get justice because of those factors they have

outlined, but in addition to that it appears that one
of the large points which was made by counsel very

shortly before the trial was to commence was that

the Crown would only proceed with assault, a lesser

charge, rather than the existing charges of grievous

bodily harm and the charge of wounding. In fact, the

file of the solicitor demonstrates on 1 August the

Crown had quite clearly told his instructing solicitor that in any event the Crown might only be going on

with assault and as far as grievous bodily harm was
concerned, the Crown had indicated that it would not

be going on with grievous bodily harm. So there is a further problem, so far as this decision to plead

guilty is concerned.	They had withdrawn from them
amount to a situation which is not in accordance with	two very salient facts which, in my submission, must
natural justic~ that is, given the fact that the
situation had occurred whereby there were numerous
conspiring circumstances by the system, inducing this plea of guilty, they also had withheld from them those
two important points which, I would submit, they were
entitled to know, but they also further had withheld from them the fact that their counsel had said to the
legal aid authorities, "if a gun were held at his head,
and he had to answer yes or no, he would say that they
would be convicted". So they were in a situation where
they thought their counsel was advising for legal aid
when,in fac~ counsel was effectively recommending
against legal aid. So they were deprived of a situation
where they could say to themselves, "Well, we have eot

HITZ/9/CM	19	13/3/90
Tracey

Mr X. He is against us as far as legal aid is

concerned. Let us go and consult another barrister

or another legal practitioner and see whether he

is prepared to put up a better case as far as

legal aid is concerned.

The situation was very much a situation, in

my submission, where they were not going to be in

a position where they could defend themselves_ unless

they had legal aid, and the circumstances which
conspired to effectively withdraw legal aid and which

conspired to prevent them from challenging that

decision, either by application for adjournment;

going to see another counsel and these sort of matters,

were all against them and overall the totality of the

circumstances is such, in my submission, that they

received a very poor standard of justice indeed.

McHUGH J:  But when the critical question is a person's state

of mind and he dollys the case up by inventing facts

which a court rejects, then it is very difficult then
to fall back and say, "Well, disregard what he said.

Disregard his inventions. Just look at what the

other side said and then draw and .an inferen.ce fran those

facts that he was influenced by them". If you had

some favourable findings of fact in your favour, it

may be that you could start to make some ground on

your legal proposition, but at the moment it does not

seem to me that ·you have got any favourable facts

concerning your clients' state of mind whatever.

MR AYLIFFE:  Your Honour, with respec4 so far as that is

concerned, I submit this is not a case which is

crucially involved in the findings of fact of the

Court of Criminal Appeal. I say that because the

difference between the Crown case and the case of the

accused. centred around the discussions on

11 and 12 August. Now on any version we had a

consensus as far as what happened on 11 August on

the important aspect, that is,the concessions were

put before the accused. There was still a maintenance

of their position of "not guilty" during that

important conversation on the morning. Now my clients

said that there was a brief conversation. There was

no substantial conversation. But in my submission,

nothing turns on that. Their position of being

"not guilty" was maintained, so there is no difference

in substance there. The brief call on the afternoon

was accepted by all parties. My clients could not

say much about it, because they were not contacted

by their counsel. This decision to plead guilty was

only relayed by their mother. The evidence is just

completely silent as to whether the mother had

consulted the boys or not in relation to that matter,

but there is very little difference as far as that

is concerned and even on the morning of 12 August, the

HIT2/10/CM	20	13/3/90
Tracey

Crown's case is that there was a brief discussion.

In fact, the counsel's note records that he was

travelling between Ulverstone and Burnie during

the half an hour 9.30 to 10.00 am. So on any version,

the evidence can be that there was only a brief

discussion. Now my clients disputed that during the

course of that brief discussion on 12 August- and

this was the central factor- they indicated that

they would be prepared to make that concession. So

the Crown case is, and I am forced to live with that

I accept, that during that brief 10-minute discussion,

a shorthand connnunication was made whereby we will

accept that we have to enter into a plea of guilty

in these deemed agreed facts. In fact, at one stage

Crown counsel accepted that what was put to His Honour

~	was in fact a lie. It was a concoction which was not
the C\!:own position;was not the defence position. A
deemed situation had arisen. So it was complicated.
It had clearly, on any version, been proceeded all along by a maintenance of a position of innocence
and being not guilty and then there is 10 or so
minutes before 12 August the court found that at that
stage they said that they would plead guilty.

And then of course when they were in the dock,

there is no dispute they pleaded guilty, butit is
connnon ground again that with only this very bri. f

discussion, for 10 minutes or so on the morning

of 12 August, counsel then turns to them and says,

"Plead guilty". So, in my submission, even on the

evidence of the counsel which we are forced to

accept for the purposes of this argument, the door

is, in my submission with great respect, well and

truely open to say that the evidence overwhelmingly

demonstrated that there had been, as I say, a

conspiracy of factual occurrences which occurred in
this case to produce a plea of guilty which was a

miscarriage of justice. It was not based on an

acceptance of guilt.

MA.SON CJ: It is a little unfortunate that you repeatedly use

this word "conspiracy" in relation to factual

occurrences. It is a misuse of the word, Mr Ayliffe.

I can understand you saying there was a combination

of circumstances, but the word "conspiracy" is
really not an accurate description at all of the

circumstances.

MR AYLIFFE:  I accept that, Your Honour,and I would substitute

a"combination of unfortunate circumstances"for the

use of the word "conspiracy". I apologise if that

has been an inappropriate use of the word.

McHUGH J: Well then given those circumstances and a finding

that your client made a free choice,

why was it not open for the Court of Criminal Appeal

to come to the conclusion that there was no miscarriage

of justice?

MR AYLIFFE 13 /3 /90

HIT2/ll/CM	21
Tracey

MR AYLIFFE: Because, Your Honour, in my submission, what the

Court of Criminal Appeal has done has. focused on

the fact that they entered the plea of guilty as
a deliberate choice, and I do not argue with that,

but I submit that is the wrong test.

(Continued on page 23 )

HIT2/12/CM	22	13/3/90
Tracey

:t1R AYLIFFE (continuing):  CHIRON's case demonstrates that you

can enter a plea of guilty based on a deliberate

choice but because the choice is motivated by

circumstances which are unjust, a miscarriage of

justice can still be demonstrated and, in my

submission, that is what the Court of Appeal has

done. They have focused on the fact that the

test is if the pleas of guilty were entered as a
result of a deliberate choice then, in those

circumstances, it is not open to the court to go

behind the entry of the plea of guilty.

McHUGH J:  It depends on the context, on the circumstances

of the case, but why in this particular case is

there anything erroneous in the court taking the

view that there being a conscious choice after weighing

up the advantages and disadvantages of~ plea, to

hold that there was no miscarriage of justice?

:t1R AYLIFFE:  Becaus~ I would respectfully submit,Your Honour,

that by taking that narrow view that there had been

a conscious decision to enter a plea of guilty and

that was the test, the court therefore shut itself

out from considering these cormnon factors which, I submit,

are crucial so far as determing whether there has been

a miscarriage of justice in the circumstances. The court

said, "There has been a deliberate choice to enter a

plea of guilty here, that is the end of the issue''.	In
my submission, it is not, there can be a deliberate
choice. Nobody suggests on a Crown case it could be said that my clients did not deliberate intend to enter their pleasof guilty but the court, because it
has too narrowly defined the test,has been, therefore,
curtailed from going to the real substance of the
argument and looking at these various unfortunate
combinations of facts which have been the real reason
for the entry of the plea of guilty and as
Mr Justice Wright said the	dominant reason for
the entry of - - -

McHUGH J: Well, he did not say that did he, he did not say

'Uominant','?

MR AYLIFFE:	No, he did not say'aominant',Your Honour - - -
McHUGH J:	He said he:

was· largely-prompted -

but he said he was -

also satisfied that~-

your clients were -

H1T3/l/JL	23	13/3/90
Tracey

intelligent and articulate people who, when

arraigned did not plead guilty simply on the

basis of their counsel's instructions .....
but rather as the consequence of a deliberate

choice.

MR AYLIFFE:  I am sorry, Your Honour, could I inquire as to

what page number you - - -

McHUGH J: Page 1106.

MR AYLIFFE:  Thank you, Your Honour:

But rather as the consequence of a deliberate

choice. Their claim that before entering

the dock they had expected a fully defended

trial to commence is quite unconvincing.

I accept that is a finding tha.t I have already

referred to in my argument.

I am also satisified that the discussions

which they acknowledge occurred in relation

to the mutual "concessions" by the Crown

and the defence, were understood by them

to relate to an agreed framework of facts .....

None of them has persuaded me that the pleas emanated from anything but a considered

decision to acknowledge guilt.

McHUGH J:  That only means to say that he, unlike the

Chief Justice, was against your clients on the

evidence.

MR AYLIFFE:  I accept, Your Honour, that the evidentiary conflict

was resolved· against us, that is, what happened

primarily on that morning of 12 August. That was

really the extent of the major conflict.

McHUGH J:	I know, but it goes beyond tha½ does it no~ because
as Mr Justice Wright said, none of the present
applicants persuaded  him that the pleas
emanated from anything but a considered decision
to acknowledge guilt.  Now, he was not finding
positively that that was the basis, he was saying that you had not satisified him that they did
emanate from anything like that.

~

MR AYLIFFE:  Well, with respect, Your Honour, I would sub~it

that His Honour's decision is contradictory on

its face because he does say as a finding of fact:

I am fully persuaded that their final

decision to plead guilty was largely prompted

by the refusal of legal aid for for a re-trial.

HlT3/2/JL	24	13/3/90
Tracey

Which, in my submission, was really all he could say because that was the burden of all the evidence

presented by both parties and in so far - - -

McHUGH J: It was a background fact._ Applying a 'but for"

test, it may be that but for that there would never have been a plea of guilty, but that is a different

question as to what ultimately compelled them or

induced them to plead guilty.

MR AYLIFFE: Well, Your Honour, I submit that His Honour

Mr Justice Wright has answered that question and

the evidence answers 1t. There is no room for

any different view on the evidence. For instance,

there was no acceptance by the accused during

cross-examui.ation . that they were guilty; there

was no evidence that they were in fact guilty; the

only evidence that was against them that was able

to be referred to during the course of these

proceedings was the record of interview that my two

clients made when they were initially detained

before the first trial.

Now, as far as those records of interviews were concerned they, at all stages, maintained, including

seven days, I think, during the first trial, that those

recordsof interview were induced from them by threats

of violence and police harassment.

TOOHEY J:	Mr Ayliffe, the original trial was in relation to
a charge of assault occasioning grievous. bodily
harm, was it,and a wounding charge?
MR AYLIFFE:	And wounding, Your Honour, yes.

TOOHEY J: There was later a nolle entered in respect of one

or other, or both of those charges?

MR AYLIFFE:  I believe there was a nolle entered in relation

to both,Your Honour.

TOOHEY J:	And a fresh indictment on the ground of simple assault?
MR AYLIFFE:	A fresh indictment entered at 9.30, I think the

evidence was, on the morning of 11 August, simply

for assault.

TOOHEY J: Well, I was going to ask you, is there any evidence

to indicate at what stage your clients became aware
that the Crown was no longer proceeding against them

on the charge of assault occasioning grievous
bodily harm or wounding but was only proceeding in

respect of simple assault?

HlT3/3/JL	25	13/3/90
Tracey

MR AYLIFFE:  I do not believe there is, Your Honour I submit

that the burden of the evidence is that they were

not aware of the fact that the indictment had been

filed at 9.30 on 11 August when they had their

discussion with counsel, where these concessions were

discussed, and the thrust of the evidence is~ and

there is a direct letter there, at one stage.-

that·at that stage their mind was .

that they would still be charged with grievous

body harm and wounding. On, I think, 25 July there is a letter in the papers where counsel advised Mrs Tracey

who appeared to be a spokesman for my clients as well

that the Crown would be proceeding with a charge of

grievous bodily harm and the charge of wounding

So whilst it may not be - I do not believe it is

specifically answered in the evidence - the thrust

of the evidence, in my submission, is that the accused

would have--at tRat stage, sEill believed.that they were

going to be tried with ·grievous boclily·hann and·wounding,, Your Honour.

MASON, CJ:  But by 11 August the accused would have been aware

that the Crown was willing to drop grievous bodily

harm at any rate and, probably, wounding , if

there were pleas of guilty.

MR AYLIFFE: Yes, I think on the Crown case, which I have to live

with,. Your Honour, the accused would have been aware

that the Crown was prepared to proceed only with

assault , if they were prepared to make concessions -

and which the Crown would make concessions on the facts

and the Crown would would proceed only with the lesser

charge of assault . But, Your Honour, it is important

in relation to that particular point,to bear in mind

that from 17 July the Crown had made it clear that - the

Director of ~ublic frosecutions, in fact, had made it

clear to Mr Cooper that it was unlikely that he would be

proceeding with the charge of grievous bodily harm

and on 1 August the Crown had telephoned the instructing

solicitor of counsel and said, ,"they may only proceed

with assault in any event

Now, these factors were never told to the accused.

So a further important injustice has occurred because

when the accused were giving consideration to this

issue of whether they would plead guilty or plead not

guilty they did not have it before them that the Crown

might, in any event, only be going on with a charge of

assault. If it is suggested that a reason for them

deciding to plead guilty was because of a lesser charge,

that was one of the cards that they had to consider,
then the thrust of that is taken away when it is realized

that there was a communication between Crown and the

solicitor - the,note of that mmorandum · is in the papers

where the Crown indicated that it may only go on with

assault, in any event.

H'1T3/4/JL	26	13/3/90
Tracey

TOOHEY J: Butany discussion about concessions could, presumably,

only have been made in the context of a plea of

guilty?

MR AYLIFFE: It seemed to be rarified, on the evidence,.

Your Honour. What was:.. said on the evidence of Mr Cooper,

and I paraphrase i 4 was to this effect, 'accepting
that you are pleading not guilty still, if you

were prepared to plead guilty then the Crown would drop

the grievous bodily harm and wounding and you would

only face the lesser charg~'. That seemed to be

the first thing that Mr Cooper put to them. Secondly,

counsel said, there could be concessions, and counsel '.s

evidence was these were negotiated in a three-way

discussion~ he was going to see counsel and coming

back to see their clients-whereby the Crown would no

longer maintain that the assault was the result of

preplanning and the Crown would accept that their

father produced the hammer during the course of the

altercation. This is a different position to the

position that the Crown had during the course of the

first trial

TOOHEY J: But those sort of concessions would ordinarily only be

made in the context of a plea of guilty, not in the

context of the way in which a trial would be run?

MR AYLIFFE:  No, there was a conflict on the evidence My clients

understood, according to their evidence, that these

concessions would be made, in any event, but I accept

that their evidence, on that point, if not expresslv

rejected, has: been - mfi.~not .accepted. by the Court of Criminal .Appeal.

But certainly, Your Honour, on the Crown case that was

put in the context of a plea of guilty, yes.

MASON CJ: Well now,Mr Ayliffe, we are still concerned with the

question of special leave. Have you anything further
to say in support of the case for special leave, bearing
in mind that we are only going into the appeal itself

in the event that special leave is granted?

MR AYLIFFE: Well, Your Honour, I can only go back to these

pointsi. the question of special leave, in my submission,
is justified because this case involves a consideration

of what are counsel's duties, as I said, when legal aid

is denied arbitrarily; what are counsel's duties when

he is effectively recommending agair.st legal aid without

advising h:is clients that that is his position, so

his clients are depriv~d, effectively, of that knowledge

and the ability to, in fact, elect:::a,-,dttf-erent-"· legal

representation. Thirdly, what are counsel's duties to

his client as far as advice to the clients are concerned

when there is a late refusal of aid and counsel is not

~'.;.:!":·.· -::t..;,·,..

HlT3/5/JL	27	13/3/90
Tracey

prepared to carry on with the trial because he is
not to be paid and, fourthly, what are counsel's
duties when deals are being offered to the accused
whilst the accused are, in any event, under pressure
to plead guilty because of the refusal of legal
aid and their inability to be able to afford or
obtain representation and when the accused have been

advised that they will not be successful in obtaining

an adjournment. Fifthly, what are the duties of those

who administer the legal aid system to ensure that the

accused, personally, is made aware of the facts that his

counsel has given advice against the merits of granting

legal aid and whether legal aid should operate on the

basis of a rumour emanating from a juryman and on the
basis of a gun-at-the-head test. Sixthly, what are the

duties of counsel to enter on a path of plea bargaining

when his clients are instructing firmly that they are

innocent and that they are going to plead "not guilty"

and seventhly, what duty does counsel have to ensure that

all relevant facts are made known to an accused person

so far as the position of the Crown is concerned, when

counsel is inviting his clients to consider the entry
of a plea of "guilty", based on reasons of expediency

rather than being based on a set of instructions which

support a finding of guilt.

Those are the matters which, I would submit, justify

the assertion that this is a matter which is fit for

special leave, Your Honour.

MASON CJ: Yes, thank you, Mr Ayliffe. Yes, very well, Mr Ayliffe,

we will hear what Mr Hodgman now has to say in support

of the application for special leave.

1:1R. HODGMAN:  May it please Your Honours, I respectfully adopt

everything my learned friend, Mr Ayliffe, has put to

you, but in the case of Diane Tracey I take the matter

a little further. As indicated in my submissions I put

it to this Court that any wrongful conviction is and

must be an affront to the administration of justice

and I put it now specifically, to crystallize it in

relation to this lady now present in this Court, that

if her conviction stands it will be on the following

basis and I ask Your Honours would you please look

at paragraph 17 of Mr Ayliffe's chronology, and my

learned friend, the Director of Public Prosecutions,

concedes that what is put there is factually correct.

So I am going to put it and then add a little bit,

which, in the chronological order, will complete the

picture.

If her conviction stands she will go to her grave as a woman convicted of assault in the following

circumstances: that at the place where the incident

occurred her estranged husband, Michael Tracey, produced

a hannner; her son, Phillips, hit his father and she

then produced a small wooden jam spoon with which she

HlT3/6/JL	28	13/3/90
Tracey

also struck her husband. That fs· 1-t·in a

nutshell and if I have said anything wrong

Mr Bugg will correct me. This woman will go to her

grave being convicted of assault in those

circumstances and I ask you to analyse. The

uncontradicted evidence is that the mother and the

two boys went to the factory which was managed by

the estranged husband. They went to the factory

because the hydroelectric power had been cut off.

At the factory a dispute arose. The husband, it is

admitted by the Crown and it was put to

Mr Justice Neasey,, had :in the top left:-hand drawer

of his desk a hammer. His son, Phillip, approached

him. The husband produced the hammer. These are

the facts that were put to the sentencing judge and

upon which the Court of Appeal says, "We will let

the conviction stand". The husband produces the hammer

in the presence of the two boys, one'of them a

teenager - both of them teenagers, I am sorry, at

this stage and a middle-aged wife.

On the facts put to the judge,Phillip Tracey

struck his father first. The Court might say, "Well,

surely, surely in defending himself he was entitled

to strike his father first if his father had a

hammer" but the fiction, in this case was that counsel

for the defence made a formal concession to

Mr Justice Neasey that young Phillip Tracey had acted excessively in punching his father when his father

was confronting the three of them with a hammer and

on the facts the Crown accepts it is in that situation

that she produces, grabs a jam spoon - a wooden spoon -

and strikes her husband.

Now, our CRIMINAL CODE has been amended from the

law as it was in 1986 but now a new section, 49, expressly provides - and, __ indeed, it was the law

anyway before - that self-defence in this State is

available not only to defend yourself but to defend

somebody else who is attacked.	And Mr Cooper -
because I accept Your Honour the Chief Justice's

comments, with respect, completely: one, we have got

to show it is an exceptional case; two, the court, as a general rule, will not go into the question of the advice given; three, I accept I have got to argue

this on the basis of what the Court of Criminal Appeal

has found and so I now turn immediately to what

Mr Cooper, in his own affidavit, said. Talking about

Mrs Tracey, he said; "The applicant's original

instructions~ prior to the first trial were that her

intervention was necessary because of the treat posed

to her sons." This middle-aged woman, on a plea of

guilty, no previous involvement with the law whatever.

I do not need to go over all the points Mr Ayliffe

has made. Can I just simply reiterate the following:

they had a seven-day trial, the three of them

represented by Mr Cooper; the jury disagrees. That

HlT3/7/JL	29	13/3/90
Tracey

seven-day trial ~as; funded by Aus:::ralian Legal Aid

so this lady and her two sons were defended by

Australian Legal Aid.	One week, less two days,
before the retrial legal aid is withdrawn.	Now,

I ask the Court, just for a moment, to consider

what impact that has on a woman such as Mrs Tracey,

on the agreed facts; never been charged with

anything in her life before; never been involved

with the law. Why it was withdrawn, all these

matters I accept ,you may be disinclined to go into,

but it is a pretty, I submit, outrageous thing

where having funded them:.·on the first trial

legal aid is pererrptorily withdrawn five days before the

retrial. Be that as it may the Court of Criminal

Appeal said, "Well it is not a matter we are prepared

to go into".

But let us take it to the very day of the hearing and what exactly happened was this, that in that court

it is agreed, by Mr Cooper, that he uttered the words

to them in the dock during the arraignment"Just say, 'guilty'.~~ Now, of course, Mr Cooper says that was by

pre-arrangement, he said that that was his habit; he

said that that was the usual course that he did when he

was appearing in court, he would remind the people

in the dock; she is told in the court "Just say,

'guilty'." Mr Ayliffe is quite correct, there is no

evidence, one way or the other. as to whether they

were ever told about the nolle prosequi on the

grievous bodily harm and the wounding, no evidence of

that at all. But what the transcription shows you is

this: that even when the Crown and the defence had got

together a confected set of facts,upon which they were

sentenced, the position was so confused that

Mr Justice Neasey had to adjourn the court so that

counsel would go away and get it right. This is what

has happened.and this is on her plea of guilty , so

much so that His Honour Mr Justice Nettlefold, in fairly

direct comments, raised this matter with the Crown,

my learned friend Mr Melick being counsel for the

Crown, and I am going to give you a couple of references,

if I may, Your Honours, it is page 228, of your appeal

books and if I might read please from line 30 to just

show how this thing completely got off the rails and why

we submit these convictions should not be allowed to

stand. This is His Honour Mr Justice Nettlefold

discussing what has happened with Mr Melick, in the
following terms, if I can take it please from line 22:

NETTLEFOLD, J: Didn't the Crown put a case to the Judge that this wasn't pre-planned?

That is to the sentencing judge, Mr Justice Neasey,at	the trial - the seven-day trial beforehand, of course,
the Crown said, "the whole thing was pre-planned".

HlT3/8/JL	30	13/3/90
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MR MELICK:  Yes your Honour. The Crown upon

the plea of guilty conceded it wasn't
pre-planned and it's part of the Crown Case

in rebuttal of this that that was one of the

concessions that Mr Cooper negotiated on behalf
of the three appellants.

NETTLEFOLD, J: What do you mean by that?

Do you mean the Crown lied to the Judge?

MR MELICK: It would appear so. It would

appear, your Honour, that the Crown was no

longer maintaining that there was a pre-planned

attack.

NETTLEFOLD J:  - - - examining a witness that

it was a pre-planned attack when you through your -

the Crown in the right of the State of Tasmania,

through its counsel, said to that Judge - I
think twice, from memory, but I'll stand corrected

about that - that they did not contend that it

was a pre-planned attack.

MR MELICK: That is correct, your Honour.

NETTLEFOLD J: Were you deceiving the Judge

because you'd done a deal backstage?

MR MELICK:  I can't answer for what - -

NETTLEFOLD J: And you'd carried out through

the medium of falsehood, is that what you're

putting?

MR MELICK:  Your Honour, the Crown on a plea of

guilty at times can only put the facts which they

think they could prove beyond reasonable doubt.

(.

So you see the pre-planned pre-arranged argument which was put in the first trial for seven days suddenly disappears. The Crown is now saying, "Well,we carn',t

prove that beyond reasonable doubt; if the matter

went to trial we had disputed facts on the plea of

guilty. There were three records of interview in

relation to this matter, the one of Diane Tracey states,

"It was not a pre-planned attack" but two of her sons

state that it was. Can I just pause there. What

Mrs Tracey says about the matter in answer to questions

by the police, is evidence against her and her alone;
what her sons say about the matter, in their record of

interview, is evidence against them alone; it is not

evidence against the mother. Here you had the position,

the mother says it was never a pre-planned attack

Mr Melick went on:

As I understand it, and I can't speak entirely

for the negotiations or the machinations -

HlT3/9/JL	31	13/3/90
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this is the Crown in right of the State of . . "W "

T asmania saying·, · e :

f'

can't speak entirely for the negotiations

or the machinations that went on in the mind of Crown counsel on this occasion because if the Crown was prepared to concede on a plea

of guilty, they could not prove beyond

reasonable doubt that it was a pre-planned

attack.

NETTLEFOLD J: Not to assert that it was a

pre-planned attack is one state of affairs.

To say nothing at all about the planning of

an attack is one state of affairs. To assert

it was not a pre-planned attack is another

state of affairs.

MR MELICK:  I appreciate the distinction,

your Honour, that your Honour draws and - -

NETTLEFOLD J: It's a very big distinction.

Honest people draw it every day, Mr Melick.

you should become involved in this matter and why	Now, Your Honours, I appreciate you want to know why even have the merits of her appeal argued. I cannot
put it more strongly than this, that if that conviction
stands and my friend, Mr Bugg, tells me there is only
one argument about paragraph 17 and that is - he says it was 8 August and reaffirmed on the 12th.-that is
correct my friend, is it not 7 · .:.. does_·_ntt disagree with
the rest of it, this woman is then left with a
conviction in the circumstances that after her
husband, on all the evidence a person of violent
disposition, has raised the hammer to her son, that
her son then hits the husband, she then strikes the
husband with a jam ladle and the son Phillip's
conviction is on the fiction that he admitted he
used excessive force. A teenage boy hits his father,
who is menacing with a hammer,and the mother intervenes to protect the son and for that is convicted.

Now, Your Honours, I know that the system here

is such .that I have got to put this pretty quickly

and, I hope, effectively. I do not presume to read

all the matters I put in the submission but just to

pick out a few points. Surely this Court, the highest

and most respected in the land, is not going to apply

narrow criteria when it comes to a question of whether

there has been a miscarriage of justice. I respectfully

adopt what His Honour Mr Justice Wright said, he hit

the nail on the head, "No refusal of legal aid,there

would have been no plea of guilty". Now that, I

respectfully submit to Your Honour Mr Justice McHugh,

HlT3/10/JL	32	13/3/90
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in the cormnents you made to my learned friend

Mr Ayliffe, is it in a nutshell. That is the

beginning and the end of the case. If legal aid

had not been taken away these people would never

have pleaded guilty in a fit - that is the fact

of the matter. His Honour Mr Justice Wright saw

it. With great respect, suggest my learned friend,

Mr Justice Nettlefold puts it a little bit high when he puts on pages 1089 and 1090, this passage:

The evidence of that choice, the evidence

as to the injuries suffered by the victim

and the fact that there was an outstanding

unresolved charge of wounding, based on the facts the subject of the charge of assault,

ground the conclusion -

and look how he puts it -

that one cannot be satisfied, taking the

case of each applicant separately, that the plea
did not proceed from a genuine consciousness

of personal gujlt.

I submit that any conviction, any conviction, that

proceeds other than from a genuine consciousress of

guilt is an unsafe conviction. I am sorry that

I was slow,Your Honcur,and I could not follow what you put earljer, that a plea of guilty by a person

who was innocent would·net constitute

a miscarriage of justice, I couJ.d. i.1ot follow that

and I ~pologise.

(Continued on page 34 )

HlT3/ll/JL	33	13/3/90
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.cHUGH J: There may be many cases where a person decides

to plead guilty, particularly to a lesser charge.

Charged with murder - - -

~R HODGMAN:  I see what you mean, yes. I would not argue

with that.

McHUGH J:	- - - he pleaded manslaughter rather than take
the risk - - -
MR HODGMAN:	No, but you would not be saying, Your Honour,

that a plea of guilty by an innocent person,

knowing that he was not guilty of that crime,

would not constitute a monstrous miscarriage

of justice because the record of the court would

show that he pleaded guilty and by that he

admitted every single legal element reguired

to prove his guilt. I woula suggest that the Court

would accept it is bad enough when guilty people

go innocent but it is unsustainable and intolerable

when not guilty people are convicted.

Your Honours do not want me to read the -

it is obvious from what Your Honour the Chief Justice

said you have already had my submission.

MASON CJ: Yes, we have had the benefit of your submissions. It

was only Mr Ayliffe's outline of submission

that we did not have, Mr Hodgman.

MR HODGMAN:  Yes. I have got to be fair and say, Your Honour,

in the usual circumstances I would be the one in

the wrong. Mr Ayliffe is impeccable. It is

apparent at this time that the ball has bounced for

me.

MASON CJ: Well, it may be that Mr Ayliffe is impeccable; it

may be that the Court is peccable in this matter;

I do not know.

MR HODGMAN:  If it please Your Honour. I put a couple of

passages that I will just take if I may because I

am appealing to the Court not to be too narrow in

looking at these matters and I respectfully submit

that thi, Court should not limit itself by legal

technicalities or a too narrow interpretation which

virtually prevents the setting aside of a conviction

except that I put in the words Your Honour,

"extraordinarily exceptional circumstances".

Now, I am submitting to you that Mrs Tracey

falls within "exceptional circumstances" and I

respectfully adopt what my learned friend put in

relation to CHIRON's case and there you have a

most interesting situation, do you not? In the

middle of the trial there is a damning ruling on

H1T4/1/SH	13/3/90
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similar: facts as a result of which counsel,

no doubt senior counsel, says to the accused,

"Look, any chance you had of getting an acquittal

is now gone, totally gone.	You ought to plead
guilty".	The man on advice., mid-trial, pleads
guilty represented by senior counsel.	The

Court of Criminal Appeal of New South Wales,

to its credit said, "That conviction cannot

stand; that ruling on similar facts was wrong;

therefore, his plea of guilty was wrong; therefore,

it was a miscarriage of justice!' I know by

heart and do not have to do any further than

just remind you of what Mr Justice Fullagar

said in MRAZ; that if a person loses a chance

of acquittal that is fairly open to them, then

in the eye of the law there has been a miscarriage
of justice. This woman lost every chance that
was open to her and the passage in Mr Cooper's

affidavit, as I said, confirms and put yourselves

please in her position, in that dock, on arraignment.

Criminal court is a fairly frightening place.

The arraignment takes place:  Mr Justice Neasey

saying, "You've put_them_up, .majo:i;"; they ar~ arraigned;

they are..... and she said, "Just plead guilty"

so she pleads guilty and I accept the Court

of Criminal Appeal said, "Well, she knew all

about it" but really, when the Crown and the

defence cannot even &et thei;r facts right and

the whole thing flows on a fiction of a teenage

boy using excessive force, punching his father

who has got a hammer, and this poor woman, the

mother intervenes with a jam spoon and gets

convicted of assault, I submit it is not a

de minimis matter that this Court will simply

say it is not appropriate for special leave.

It is a matter where you will say, "We leave this conviction standing against Mrs Tracey'.'.

It is not only a legal absurdity; it is

a monstrous injustice because those facts in

that paragraph 17 are all that I need to argue

and all that I do. All the points Mr Ayliffe

mad~ really, what a tragic comedy of errors

for this woman and her two sons. I guess

Court is entitled, as it properly will say these
are matters that should have been fixed up by

the Court of Criminal Appeal; legal aid is

withdrawth How would they feel if they._ _

had known that at the very time they believed

their counsel was fighting for legal aid for

them he was, in fact, telling the legal aid

authority that privately he did not think they
should have it.

I put on record as a matter of public importance for Your Honours to consider in the leave application

H1T4/2/SH	35	13/3/90
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this point: that whilst it is proper for legal

aid authorities because of the shortage of public

funds to ensure that moneys are not wasted, it

is proper then to say to counsel, "What do you

think the chances are on the trial?" It is grossly

improper for legal aid to ask the personal opinion

of counsel as to whether he thinks they are guilty or not and it is grossly improper of legal aid to

conduct a pre-trial and in this State there are

instances where legal aid has been refused and

a person is subsequently tried by barristers who

appear without fee and they were acquitted.

MASON CJ: Mr Hodgman, that is a matter for the Tasmanian

Law Society to give attention to, is not it?

• It is not a matter for the attention of this

Court.

MR HODGMAN:  I would have hoped it was, Your Honour, but

I accept what you say. I would have failed

in my duty to this Court if I had not drawn

to your attention these sorts of things because

they are not just peculiar to this State and

the old legal aid proposition of, "No legal aid

on a trial of not guilty but we'll give you

legal aid for a plea of guilty" cuts right

across, in my respectful submission, the

administration of justice. The only bodies

proper to determine guilt or innocence in

this country are the courts and a person who

is told by a legal aid authority, "No legal

aid for you if you go ahead with your trial but you'll get it if you plead guilty" puts

enormous pressures - and just if I might add

one final matter in relation to that before

I conclude, Your Honours, I want to put

something to you and I put it in the submission that

if I have erred and said things I should not say, well, perhaps I should apologize but I

want to refer to the fact that the high acquittal

rate on second trials is well-known and I put

it as simply as this: that it is notorious

that second juries are less likely to convict

knowing that a first jury has disagreed.but,

in addition, counsel for the defence is so

much better armed on a second trial because

they have got the transcript of every answer

given in the first trial.

I would put it that far from withdrawing

legal aid on a second trial when a first jury

has disagreed, legal aid almost ought to be

mandatory on a second trial in those circumstances.

Your Honours, I have been given a reference

as you can see in full flight and I apologize

if I have not referred to it but if I may.

H1T4/3/SH	36	13/3/90
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MASON CJ: Well, it is generally wise counsel, Mr Hodgman,

not to read out a decision to the Court that

is given to you by someone else that you have

not read yourself.

MR HODGMAN:  Thank you, Your Honour. I take Your Honour's

advice. I am sure Mr Ayliffe will find a way

of getting it.

Yes, I did say and I repeat if I may, briefly,

as I come to my conclusion, Mrs Tracey pleaded

not guilty - I am reading from page 2 - upon her

arraignment at her first trial and a jury,

after proper direction and careful consideration

of all the facts was unable to arrive at a verdict

one way or the other.

We respectfully submit that upon a retrial

her chances of an acquittal would have been

greatly enhanced, bearing in mind the reluctance

of second juries to convict when a first jury

has disagreed and, secondly, the added advantage

of counsel for the defence on a retrial of having

a full transcript of all the answers given at

the first trial.

It is clear beyond doubt these are agreed

facts; that Mrs Tracey and her estranged husband were not on good terms. He was a man of violent

disposition and erratic behaviour; that he

instigated the violence on the day in question;

that he certainly struck her son in her presence;

that he had a hammer in the drawer of the desk

to which he moved shortly before Mrs Tracey struck him in defence of her young son with

a wooden jam spoon. The defence of ,self-defence

was open to Mrs Tracey not just on her own

account but in defending her young son who was

much smaller in statute than his father;

the WINSLOW BOJ case was over five shillings.

This woman's case, in my respectful submission,

is not a matter that this Court will just turn

away from and say, ''No, you don't come within

the special leave". Where we have shown you

all the things that went wrong but, more

importantly, what a legal monstrosity remains

if her-conviction stand I conclude on this

note: that,in my respectful submission, the

High Court of Australia is not going to say

to the rest of Australia that this middle-aged

woman of impeccable character should go through
her life, remaining years, with a conviction

for assault in the circumstances which the

Crown concedes and which I - - -

MASON CJ:	We obviously are not going to make any
of statement of that kind at all, Mr Hodgman.

H1T4/4/SH	37	13/3/90
Tracey

What we are going to do is consider this case

as a matter of legal principle.

MR HODGMAN:  Yes. That is the fundamental principle to

which I appeal; that you will not permit a

conviction to stand on what is a legal traversty.

MASON CJ:	Yes.
What I am suggesting to you is that it would be more apt and appropriate if you directed
our minds to matters of legal principle than
engage in what, in some respects, may be just
matters of rhetoric.
MR HODGMAN:	Yes. Well, I rely on CHLRON's case absolutely.

McHUGH J: But, in any event, Mr Hodgman, you have left

out some important facts, have you not· - - -

MR HODGMAN:  No.

McHUGH J: - - - because the trial judge said despite its

innocent sound name, the jam paddle was a piece

of wood heavy and hard enough to inflict substantial

injury and, in fact, the husband's head was

cut to the bone by a paddle blow or blows.

MR HODGMAN:  Yes, and photos aEe in Court if you have got

exhibits. Struck on the top of the head where

the skin is very thin and where a laceration

which I think required three stitches or four

stitches occurred, that is all. I think the

jam spoon should be in Court, with great respect. It was pnesented in the Court of Criminal Appeal. It does not, with respect, quite match the

description of His Honour the sentencing judge.

I do not know that the exhibits are in Court. It

is-- a.~:p1.dcHing · little jam spoon really. It

was not a sort of big baton or anything like

that.

MASON CJ: But, looking at it from a wider perspective

than merely your client, there is no doubt is
there, Mr Hodgman, that very severe injuries

were inflicted on Michael Tracey.

MR HODGMAN:  No, Your Honour. He was in hospital.

MASON CJ:	He was in hospital and he was immobilized for
seven days including fractured vertebrae.
MR HODGMAN:	Well, he did not come out for seven days.

You see, that has nothing to do with the jam

spoon though, Your Honour.

MASON CJ: No, I was not suggesting it was and I prefaced my comment to you by saying that I was looking

at it from a wider perspective than that of

your client.

H1T4/5/SH	38	13/3/90
Tracey

MR HODGMAN: 

No, I accept that, Your Honour, but you see

they abandoned the pre-plan so she could not,
with respect, be tarred with the brush of whatever
the boys did in relation to their physical contact.

The gravamen of what she did was to strike him

two or three times on the head, one blow being

sufficient to cause a laceration which required

three little stitches.

Now, Your Honours, I will leave it with

you on that basis because you have asked me

the principle; I am saying ifi •trhey could-set aside
the conviction on a plea of guilty advised by

senior counsel half-way through a trial in

CHIRON's case, I respectfully submit you will

set aside Mrs Tracey's conviction in this

circumstance where, on the facts put to the

Court, the conviction is a non-sequitur and

a nonsense and would not have stood up to

examination in any trial, I submit.

You see - I will leave it on this basis:

let us pretend the·facts as put in sentencing

were put in opening the Crown case and I

just ask you to listen for one minute because

this is how Crown counsel would have opened

it. The Crown's case against Mrs Tracey is

this: that she and her two sons went to her

estranged husband's office~ at the office,

her husband after an argument produced a hammer
out of the drawer of his desk; his son, Philip,

then struck him and Philip has admitted that

he struck his father, armed with the hammer,

excessively with his fistsJ Mrs Tracey then

intervened and hit her husband, as she told

the police, to protect her son, hit him-over'the head

with a jam spoon; we ask you to find her

guilty of assault. No jury in the world, I

submit, no jury would have convicted her on

that sort of a Crown case.

McHUGH J:	But the Crown would not have opened in that
way in the second trial, would they; because the pre-plan would have been part of their case.
That was the concession you got for the plea
of guilty.
MR HODGMAN:	I was not there and -

McHUGH J: Well, your client

MR HODGMAN:  No, I am sorry, Your Honour, I did not and

I with great respect submit that even with the

pre-plan there Mrs Tracey could not have been

convicted on those facts in that (a), the husband has taken the first step to violence by producing the hammer; (b), the son has then punched the

husband; (c), she, being apprehensive that he

HlT4/6/SH 39 13/3/90

Tracey

is going to get the better of the son comes

to the aid of the son and hits him three times

on the head - no jury would convict on that,

Your Honour, I respectfully submit, so why

should the conviction stand on that concocted
confected set of facts·? That is my appeal to this

Court, if the Court pleases.

MASON CJ:  Yes, . thank you, Mr .Hodgman.: The Court wi 11

take a short adjournment in order to consider

the course it will pursue in this matter.

AT 11.55 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.01 PM:

MASON CJ:  The Court need not trouble you, Mr Bugg.

MR BUGG: If the Court pleases.

MASON CJ: There are elements in this case which would,

in appropriate circumstances, give rise to

important questions of law. However, having

regard to the findings of fact made by the Court of Criminal Appeal and the rejection of the applicant's evidence that their pleas,

of guilty were not free and deliberate, we

do not consider that the present case is a

suitable vehicle for the determination of

any point of general principle. All that there is

is a. sufficiently arguable case of relevant

miscarriage of justice. The application for

special leave to appeal is, therefore, refused.

AT 12.04 PM THE MATTER WAS ADJOURNED SINE DIE

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