R v White

1. [1]

   HER HONOUR: On 10 January 2022 the applicant, Scott White, was arraigned before the Court upon an indictment charging him with the murder of Scott Johnson in the period between 7 December 1988 and 11 December 1988, at Manly in this State. The applicant’s arraignment was an essential step prior to the conduct of what was anticipated to be a hearing of pre-trial objections to evidence. Upon arraignment, the applicant entered a plea of guilty to the charge.

2. [2]

   This judgment deals with the application that was subsequently made by the applicant, by Notice of Motion filed in Court with leave on 11 January 2022, to vacate that plea.

3. [3]

   The application is opposed by the Crown.

A Brief Overview of the Matter

1. [4]

   The charge to which the applicant pleaded guilty relates to the 1988 death of Scott Johnson, a death initially regarded as suicide and only much later considered to be one brought about by the malign act of another person.

2. [5]

   At the time of his death, Dr Johnson, a citizen of the United States of America, was living in Canberra and studying for a PhD in mathematics at the Australian National University [the doctorate being awarded to him in 1995, posthumously]. He regularly travelled to Sydney for the purposes of his studies and was in Sydney for a few days in early December 1988.

3. [6]

   He was last seen alive by a friend in Sydney on the morning of Thursday 8 December 1988.

4. [7]

   On Saturday 10 December 1988 a fisherman found Dr Johnson’s naked body on rocks at the base of the headland at Blue Fish Point in Manly. His clothing and some other personal items, although not his wallet, were found on the clifftop above.

5. [8]

   An autopsy conducted on 14 January 1988 determined that Dr Johnson had died due to multiple injuries he had sustained, evidently from leaving the cliff top and striking the ground. The forensic pathologist, Dr Johan Duflou, was of the view that death had occurred 4 to 6 days prior to autopsy.

6. [9]

   Three coronial inquiries were held over the years, concluding, respectively, death by suicide, an open finding, and a finding that Dr Johnson’s death was caused by actual or threatened violence by unidentified persons that led to him leaving the cliff edge and falling to his death.

7. [10]

   The police investigation into Dr Johnson’s death was renewed, with a strike force being assembled in September 2018. There was considerable publicity surrounding both the third inquest and the substantial reward offered for information leading to the conviction of the person or persons responsible for Dr Johnson’s death. Following the publicity, information was received by police from a member of the public, and inquiries thereafter focused on the applicant.

8. [11]

   The applicant was arrested and charged with murder on 12 May 2020.

Procedural History

1. [12]

   The Court’s records reveal that the applicant first appeared before the Local Court on 13 May 2020. He was remanded in custody by the Local Court and has remained on remand since that date.

2. [13]

   The charge certificate was filed on 14 September 2020.

3. [14]

   On 28 January 2021 he was committed to the Supreme Court for trial. Although not formally arraigned the applicant had indicated that his plea would be one of not guilty, and the matter was fixed for trial on 2 May 2022. The Criminal List Judge was advised that there were significant disputes as to the admissibility of evidence and a pre-trial hearing was listed on 10 January 2022 to determine the admissibility issues.

The Events of 10 January 2022

1. [15]

   The matter was unable to proceed at 10am on 10 January 2022 due to problems caused by flooding in the King Street Court complex. After a delay of almost an hour, during which time the applicant was situated in turn in the court cells and in the dock of Court One King Street, the matter was called on.

2. [16]

   The number of persons physically present in the court room was limited, due to current Public Health orders but, other than legal and court personnel, they included a police officer connected with the investigation, Dr Johnson’s brother, and two persons present to provide support to the applicant. The police officer and Mr Johnson were seated in the raised public gallery, well back from the floor of the court room below, in which the dock is located. Between those persons and the applicant, and on the floor of the court room at the same level as the applicant, were seated one of his support persons, his solicitor Ms Sutherland, and counsel at the Bar Table. Sitting beside the dock and immediately adjacent to the applicant was the second of his support persons.

3. [17]

   The applicant was arraigned, with the transcript recording what occurred in conventional, abbreviated, terms:

4. [18]

   A more complete record, taken from the transcript, supplemented by the Court’s observations and notes is:

5. [19]

   The plea was entered in a loud clear voice, and in an emphatic and determined manner. To the Court’s observation, the applicant did not appear distressed, agitated, or anxious during the arraignment, at least not to an extent beyond what might be expected and is commonly seen when an accused person is arraigned in an open court upon a very serious charge. He stood upright and still, and did not move his hands or gesture in any way. He looked directly at my Associate as the plea was entered. His voice did not tremble or waver.

6. [20]

   Immediately after the plea was entered and before speaking with the applicant Senior Counsel for him sought a short adjournment so that she could speak with her client. The necessary time was made available. Upon the resumption of the proceedings an application was made for the arraignment to be repeated or, if that course was not permitted, for the Court to hear an application to vacate the plea of guilty.

7. [21]

   Senior Counsel was not able to assure the Court that the plea of guilty had been entered by mistake, responding to an inquiry about that possibility only with the information that the plea was not one that the applicant maintained.

8. [22]

   Since the plea was deliberately entered, I was not prepared to simply re-arraign the applicant, and instead the matter was adjourned until the following day for hearing of the application for leave to vacate the plea of guilty.

The Evidence

1. [23]

   The applicant did not give evidence on the application and there is no account from him of the events that could be tested.

2. [24]

   An affidavit affirmed by his solicitor, Louise Sutherland, on 11 December 2022, was read in the applicant’s case. Ms Sutherland gave an account of her dealings with the applicant, and of the experts she had engaged to assess his cognitive capacity or any psychiatric disorder he might have. It is convenient to commence with the reports of each of the experts produced by Ms Sutherland, before returning to her evidence as to her own experience of the applicant.

3. [25]

   Dr Molly Schafer, neuropsychologist, assessed the applicant on two occasions, 21 April 2021 and 7 May 2021, and her reports of 26 May 2021 and 25 June 2021 are in evidence. Amongst the material provided to Dr Schafer were medical records for the applicant held by Manly Hospital covering the period 2 August 1982 to 12 July 2009, when the applicant was aged between about 12 and 39 years; Justice Health records for the period 5 December 2016 and 3 November 2020; and test results (but not any report) from neuropsychological assessments of the applicant conducted by Dr Susan Pullman on 14 September 2020 and 22 October 2020. The doctor also obtained a history from the applicant, recorded at 2.1 – 2.8 of her report of 26 May 2021. Other information was provided by the applicant’s sister. She told Dr Schafer that the applicant could not read or write “properly”, that he had taken care of their mother between 2009 and 2018 and had been their mother’s principal caregiver in that time, that he had moved to live alone after their mother’s death in October 2018, that he thereafter increased his alcohol consumption; and that he had been refused funding through the National Disability Insurance Scheme.

4. [26]

   Dr Schafer assessed the applicant’s fitness to be tried with reference to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). With respect to his capacity to plead to the charge of murder, the doctor noted that:

5. [27]

   When questioned about his capacity to answer the charge or make a defence the applicant:

6. [28]

   Dr Schafer was not able to administer a full range of neuropsychological tests to the applicant because of the recency with which he had been tested by Dr Pullman. She noted that the applicant spoke loudly with poor articulation and a limited vocabulary. He was noticeably anxious during the assessment process. He was fully oriented.

7. [29]

   Noting that she regarded the testing as valid, with the applicant making a satisfactory effort, Dr Schafer found that:

8. [30]

   An assessment of the applicant’s adaptive skills, such as his capacity for self-care, was based entirely upon information provided by the applicant’s sister, who provided a long list of everyday activities that the applicant was unable to perform or had never performed, such as reading a menu, making an appointment, or having one or more friends.

9. [31]

   On the basis of the information and test results Dr Schafer observed (at 6.2 – 6.4) that:

10. [32]

    She noted that the applicant’s test performance may have been adversely affected by his anxiety which “appeared to escalate as the assessment progressed”.

11. [33]

    Relying on the report of the applicant’s sister as to his inability to manage or manage independently many ordinary life tasks, coupled with the applicant’s impaired verbal memory, Dr Schafer concluded that the applicant met criteria for an alcohol induced major neurocognitive disorder. She regarded him as fit to be tried although, given his significant cognitive limitations, Dr Schafer thought the applicant would require a support person from the Justice Advocacy Service, and additional time for his representatives to explain proceedings to him and obtain instructions.

12. [34]

    Dr Schafer’s second report of 25 June 2021 was principally directed to matters relevant to the question of the admissibility of disputed evidence. Of some present relevance are her observations as to the suggestibility of persons with a mild intellectual disability (with an IQ range of 57 – 75), who are “more susceptible to leading questions” and vulnerable to persuasion and acquiescing when questioned by others. These vulnerabilities extended to people with alcohol induced cognitive impairment.

13. [35]

    Dr Richard Furst, forensic psychiatrist, saw the applicant on 2 March 2021. He took a history from the applicant who reported feeling depressed and suicidal. As to the applicant’s fitness to be tried Dr Furst concluded that he was fit. The applicant was aware of the allegation against him and understood the plea options available to him. Although the applicant said he would struggle to follow court proceedings, Dr Furst noted that he “understood every question put to him” during the assessment and, on review of two recorded interviews between police and the applicant he appeared to Dr Furst to have understood all of the questions put to him and “answered logically throughout”. During the recorded conversations between the applicant and two undercover police operatives the applicant demonstrated in Dr Furst’s opinion capacity to describe events that occurred in the past, recalled events of eight weeks earlier, and he showed familiarity with the area of North Head.

14. [36]

    Dr Furst observed that during the assessment the applicant had “a simple manner” but was logical throughout the process. There were no signs of thought disorder, delusions, or severely depressed mood.

15. [37]

    The doctor opined that the applicant met criteria for alcohol dependence, a persistent alcohol induced neurocognitive disorder, and a borderline personality disorder or traits thereof. By reference to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act Dr Furst concluded that the applicant was fit to be tried.

16. [38]

    Dr Katie Seidler, psychologist, saw the applicant on 25 August 2021. She found the applicant to be affable and pleasant and he co-operated with the interview process, although displaying reluctance to discuss some issues. She thought he was a poor historian, and noted that he “seemed to get increasingly stressed with me asking questions as the interview wore on”. When stressed she observed that the applicant rubbed his hands and face. Dr Seidler found the applicant to be both oriented and alert, if unsophisticated intellectually and socially. Her impression was of a person whose neurocognitive functioning had been adversely affected by years of alcohol abuse. She said he was “tearful in discussing the alleged offending behaviour”, but was generally coherent, with no evidence of thought disorder.

17. [39]

    The applicant gave Dr Seidler an account of his early years, childhood, and medical history. He said that he received a Disability Support Pension and, for a period in excess of a decade, had received a Carer’s Pension as the full-time carer for his mother. Although a self-described loner the applicant said that he had many friends in the past and presently, and has had many intimate relationships, including his marriage, which he would not discuss. He described drinking daily, with friends or alone, and referred to symptoms consistent with alcoholism.

18. [40]

    Dr Seidler concluded that the applicant is:

19. [41]

    She regarded the most appropriate diagnoses as a Generalised Anxiety Disorder and Post-Traumatic Stress Disorder, with a low mood. She thought it likely that the applicant would meet criteria for a Personality Disorder although could not be definitive as to the relevant traits. She observed - incorrectly given the other evidence before the Court - that earlier psychometric testing had confirmed that the applicant had an intellectual disability.

20. [42]

    Dr Seidler regarded the applicant as “a vulnerable person who is acquiescent and easily influenced”.

21. [43]

    In her affidavit Ms Sutherland deposed that, throughout her interactions with the applicant, which she said in cross-examination had commenced in May 2020, she had not had any reason to doubt the opinions of Drs Schafer and Furst as to the applicant’s fitness to be tried. Ms Sutherland expressed confidence that, with the sort of support referred to by Dr Schafer, the applicant could give clear instructions to her. During conferences the applicant had been, since committal in January 2021, generally consistent that he wished to plead not guilty to the charge against him. Despite that, there have been occasions, apparently when subject to stress, when the applicant has suggested he change his plea to one of guilty. Ms Sutherland said, at [10] of her affidavit:

22. [44]

    As the hearing date for the pre-trial applications approached Ms Sutherland observed, during conferences with him on 7 and 8 January 2022, that the applicant was stressed, but she did not regard that as unusual. When Ms Sutherland again spoke to the applicant, on the morning of 10 January 2022, in the court holding cells and when accompanied by counsel, the applicant was stressed, complaining that he had had nothing to eat apart from an early morning bowl of cereal. He was anxious about the court process. The applicant was advised that he would be arraigned in court, and the procedure was explained to him. His proposed plea of not guilty was confirmed.

23. [45]

    Ms Sutherland noted that there was a delay in the matter starting and, when the applicant was arraigned before the Court, the plea was entered without notice of it to her or counsel. After the Court had taken a short adjournment, the applicant was unwilling to leave the dock and return to the holding cells. When Ms Sutherland explained that she and counsel needed to speak with him, he agreed to leave the dock and was taken to the cells, where a further conference was conducted.

24. [46]

    Ms Sutherland observed the applicant to be in a distressed and highly anxious state. He repeatedly referred to the fact that “she will just come after me again”, understood to be a reference to the applicant’s former wife, and he seemed extremely agitated. He expressed feelings of hopelessness about his predicament. Ms Sutherland made longhand notes of the conference as it took place, with a typed notation made from the notes later on 10 January 2022. Those notes ultimately became Ex. VD1, having been tendered in re-examination (as was a typed version of conference notes taken of the discussion with the applicant prior to 10am on that day, now Ex. VD2).

25. [47]

    Ms Sutherland deposed that, after the applicant calmed down, and his options were explained to him, he gave instructions that he wished to plead not guilty, saying that he was not responsible for the death of Scott Johnson. Written instructions were subsequently obtained by Ms Sutherland, and produced by her as Annexure E to her affidavit. The written instructions, in Ms Sutherland’s hand but signed by the applicant, said in part:

26. [48]

    Ms Sutherland was required by the Crown for cross-examination and gave evidence on 11 January 2022.

27. [49]

    She confirmed that it was her opinion that the applicant was fit to plead, on the basis that he receive “some support and some special care in terms of communication”. That support had been put in place with two support persons present in court with the applicant, and the necessary care was taken to explain matters to the applicant and take his instructions. She acknowledged that the caveat she placed upon the question of the applicant’s fitness related only to his understanding of events and the additional time needed when speaking with him. The following evidence was given:

28. [50]

    Ms Sutherland said that, in her dealings with the applicant, he was always stressed and anxious, that being more pronounced on some occasions than on others. She observed him to be stressed when she spoke with him on the morning of 10 January, prior to 10am, although his distress was not uncharacteristic and it related principally to the conditions of his custody rather than to the court proceedings.

29. [51]

    During that short conference Senior Counsel told the applicant that his sexuality would be referred to in opening his case to the Court, and the applicant raised an issue about the evidence his former wife could give, expressing some confusion about that aspect of the matter. The arraignment process was then explained to the applicant and he said he would plead not guilty.

30. [52]

    The applicant was brought into the court room and Ms Sutherland agreed that she observed him chatting to his support workers whilst the matter was held in the list. The following evidence was given:

31. [53]

    Ms Sutherland did not see anything that caused her to think the applicant needed reassurance. In the ordinary course rather than prompted by any conduct of the applicant, she discussed the arraignment process with him again as he sat in the dock, and also discussed the process with the support worker who sat with the applicant, to ensure that the applicant was “supported through the arraignment process”.

32. [54]

    There was nothing about the court room and the location in it of individuals in the public gallery that Ms Sutherland regarded as possibly intimidating to the applicant.

33. [55]

    Following the arraignment Ms Sutherland spoke with the applicant, taking the notes that were in part the basis of the typed notes that became Ex. VD1. With reference to Ex. VD1 Ms Sutherland agreed that, on attending the applicant in the cells, the first thing said was by the applicant.

34. [56]

    The notes record the following discussion, extracted below in their entirety (although with the nomination of the speaker formalised in a consistent way):

35. [57]

    Ms Sutherland agreed that, during the conference, the applicant did not say anything to the effect that he did not do it and was not guilty until after that was said to him by counsel. The applicant had agreed with counsel, saying:

36. [58]

    Ms Sutherland agreed that the applicant had said that his entry of a plea of guilty was not “a split decision”, a phrase that she understood to mean that the decision to plead guilty had not been taken “on the spur of the moment”. The applicant’s reference to “four occasions” and his suggestion to Ms Sutherland that she “look on the system” [of the Legal Aid Commission’s records] accorded approximately with her recollection of the number of occasions on which the applicant had raised the question of changing his plea [to one of guilty]. Ms Sutherland confirmed in evidence that the waiver of legal professional privilege that had been given by the applicant with respect to the instructions he gave on 10 January 2022 did not relate to these earlier discussions, on “several occasions”, about changing his plea, other than to the extent that they had occurred.

37. [59]

    Ms Sutherland agreed that the applicant did not tell her or counsel at any stage that he did not intend by his plea of guilty to admit his guilt.

38. [60]

    In re-examination Ms Sutherland confirmed that she had not at any stage, presently or in the period leading up to the proceedings this week, regarded the applicant as so overwhelmed with stress and anxiety as to be unable to understand matters or respond to the case against him. She said that there had been some discussion between her and counsel as to whether the applicant’s level of anxiety was so extreme as to have an impact on his fitness to be tried, but the legal representatives agreed that “that was not the case”. The following evidence was given:

39. [61]

    The Crown tendered a report of Dr Adam Martin, forensic psychiatrist, Ex. VDA. In his report, dated 24 June 2021, Dr Martin noted that he saw the applicant on 9 June 2021. The doctor was provided with relevant documentary material and reviewed the applicant’s history and medical situation. Dr Martin observed that the applicant understood that he had been charged with murder, was aware of the nature of the allegations against him, and he referred to the plea of not guilty that he had determined to enter to the charge. The applicant told Dr Martin that he felt sorry for the deceased’s brother and “inferred that a guilty finding might ‘put the family to rest’”.

40. [62]

    The applicant was visibly upset and frustrated at times but Dr Martin was able to establish a reasonable rapport and the applicant became calmer. His communication was basic but coherent, and there was no evidence of delusions or hallucinations. A review of collateral documentation, noting an assessment by Dr Canessa in October 2020, suggested that the applicant did not suffer from schizophrenia or a bipolar disorder, but was anxious and traumatised with a background of childhood neglect.

41. [63]

    Having considered recordings of the applicant interacting with police officers, Dr Martin was of the opinion that the applicant was lucid and coherent, oriented and calm. He was able to negate police suggestions or questions where appropriate, and there was nothing in any of the electronic evidence that suggested a major mood disturbance or any psychosis.

42. [64]

    Dr Martin concluded that the applicant has a diagnosis of alcohol use disorder, in remission in custody; but not diagnoses of schizophrenia or other major disorders. His presentation was consistent with a major mood disorder and mood instability with a background of chaotic developmental years. Dr Martin accepted that the applicant probably had “some cognitive deficits as a result of alcohol dependence”, complicated by limited educational attainment and previous head injuries. He thought a diagnosis of a neurocognitive disorder was tenuous however, particularly having regard to the reliance placed upon the information provided by the applicant’s sister, which contrasted with evidence that the applicant was self-reliant in the community prior to arrest. Dr Martin did not discount the prospect that the applicant’s deficits had been exaggerated by him and / or his sister for the perceived advantage that might confer.

43. [65]

    The applicant is, in Dr Martin’s view, of borderline intelligence with some probable cognitive deficits, the extent of which could not be determined with precision. He did not think there was major impairment.

The Submissions

1. [66]

   Senior Counsel for the applicant focused on the evidence that related to the applicant’s cognitive impairment, referred to as evidence of an “intellectual disability and mental illness”; the applicant’s failure to advise his legal representatives about the plea he intended to enter prior to entering it; his previous insistence to his lawyers of his innocence of the charge; and his state of extreme agitation on 10 January 2022, to submit that the circumstances in which the plea of guilty was entered were such as to call into question the integrity of the plea. The integrity of the plea was so undermined that to hold the applicant to the plea he entered would constitute a miscarriage of justice. It was argued that the plea entered by the applicant at arraignment was not attributable to a genuine consciousness of guilt, and neither could it be regarded as a true admission of guilt; it did not evidence a genuine intention to enter a plea of convenience for reasons of self-interest.

2. [67]

   Senior Counsel submitted that the principle of finality should be given less weight than might otherwise be the case having regard to the very short period of time between the entry of the plea of guilty and the application to vacate it.

3. [68]

   The Crown gave emphasis to the principle that a plea entered intentionally by an accused person who has full knowledge of all the facts amounts to a cogent admission of the elements of the offence, which should not be set aside without a good and substantial reason. It was argued that the applicant deliberately and emphatically entered his plea of guilty, and no question as to his fitness has been raised or arises. The expert evidence and the evidence of Ms Sutherland is uniformly that the applicant is fit to be tried, and is and was capable of understanding the charge against him and entering a plea to the charge.

4. [69]

   In the absence of any evidence from the applicant, there is insufficient evidence to raise any real question over the integrity of the plea. On such evidence as is available the Court can conclude that the applicant has given consideration to changing his plea to one of guilty in the past and discussed that with his lawyers; and has given consideration to the effect of the ongoing proceedings on the family of the deceased, which indirectly suggests remorse and consciousness of guilt. The applicant has also had regard to the nature of the penalty that could be imposed upon him on a plea of guilty, with the prospect of a reduced penalty informing his decision. It was submitted that the applicant has not at any stage suggested that he did not intend to enter a plea of guilty, but rather did so having reflected on that course over time, and for reasons that reflect feelings of remorse and are thus an indirect acknowledgment of his consciousness of his guilt. The applicant sought to reverse his plea not on his own initiative but only after being persuaded to do so by his lawyers.

5. [70]

   No miscarriage of justice could arise from a refusal to permit the applicant to withdraw his plea having regard to the circumstances in which it was entered.

The Law

1. [71]

   The law that relates to the question of the vacation of a plea of guilty is well settled. It may be found stated and restated in decisions such as Liberti v R (1991) 55 A Crim R 120; Boag v R (1994) 73 A Crim R 35; Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41; Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46; R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61; R v Sewell [2001] NSWCCA 299; Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129; Kennedy v R [2017] NSWCCA 193; Thafer v R [2019] NSWCCA 143; and Samandi v R [2020] NSWCCA 217, to cite but a very few of the very many cases on this issue.

2. [72]

   A summary of the principles can be conveniently extracted from the last named of those decisions, Samandi, which itself refers to Kanakaradnam v R [2018] NSWCCA 282; Fuller v R [2021] NSWCCA 194; Wong, and Hunter Quarries Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326. At [30] – [32] Johnson J, with the concurrence of Bell P and Rothman J, said:

3. [73]

   Those are the principles that the Court must apply in determining the application for leave to vacate the plea of guilty entered on 10 January 2022.

Determination

1. [74]

   It is important at the outset to have regard to the significance accorded by the criminal justice system to a plea of guilty intentionally entered in open court by an accused person who is in full knowledge of all the facts. Such a plea has long been regarded as an admission of all of the elements of the offence; and

2. [75]

   That principle has been frequently stated: Meissner at 141; R v SL [2004] NSWCCA 397 at [51]; Wong at 42 [19]; Charlesworth v The Queen (2009) 193 A Crim R 300; [2009] NSWCCA 27 at 308 [25]; R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 at 312 [34]; and Kanakaradnam at [18].

3. [76]

   It is regarded as a cogent admission of guilt even in circumstances where the accused who enters such a plea claims to be innocent of the charge to which the plea was entered: Meissner at 141; Wong at 45 [33]; Thalari at 312 [34].

4. [77]

   It is also important to emphasise at the outset that, in considering whether to give leave to the applicant to withdraw his plea of guilty, the Court does not conduct an inquiry into the question of the applicant’s guilt. The focus is on the circumstances surrounding the entry of the plea of guilty and whether those circumstances are such as to cast doubt on the integrity of the plea.

5. [78]

   I have set out already, at [16] to [19], a description of the circumstances of the entry of the plea of guilty by the applicant upon arraignment. I do not understand either party to take any real issue with that account of the events.

6. [79]

   I did not observe anything about the applicant’s demeanour or manner when he was arraigned that suggested his plea was anything other than one intentionally entered as an acknowledgment of his guilt of the charge, and nor is it suggested that he manifested some symptom of being overborne by anxiety or distress such as to lead immediately to doubt as to the integrity of the plea. Of some significance having regard to the evidence of Dr Seidler as to the applicant’s mannerism of rubbing his hands and face when stressed, the applicant was physically still when arraigned, and appeared to be calm. He demonstrated no agitation.

7. [80]

   Ms Sutherland’s evidence was that the applicant had been distressed and anxious when she saw him between 9am and 10am on 10 January, but it must be recalled that she also accepted that, on entering the court room at some stage after 10am, the applicant engaged in seemingly jovial conversation with his support workers and his manner was noticeably calmer than it had been earlier. Whilst Ms Sutherland raised the possibility that the apparent improvement to the applicant’s mood was “a mask”, that possibility can be no more than that in my conclusion. It is speculation which is to be contrasted with Ms Sutherland’s evidence that the applicant seemed to be much calmer than he had been when in the holding cells, and she was pleased with the change in his demeanour. Certainly Ms Sutherland, knowing the applicant as she does, saw nothing in court on 10 January to give rise to any concern as to the applicant’s fitness.

8. [81]

   Thus, in the applicant’s presentation before the Court when the plea was entered, and in the environment of the court room itself, there was nothing that could lead to concern as to the integrity of the plea.

9. [82]

   That the applicant had full knowledge of the facts when he deliberately entered his plea in court is clear from both the expert evidence, and the evidence of Ms Sutherland.

10. [83]

    Dr Schafer refers to the applicant having discussed with his solicitor the plea that he would enter and the answer he proposed to make to the case. He understood the charge against him. Dr Furst regarded the applicant as logical, able to give an account of events relevant to the charge against him, and able to plead to the charge. The doctor considered that the applicant understood the questions put to him by police in the recorded interviews conducted with him, and was able to give coherent responses. He demonstrated reasonable recall of past relevant events. There is nothing in Dr Seidler’s report – which was not directed to fitness – that detracts from the evidence of Dr Schafer and Dr Furst with respect to this aspect of the matter.

11. [84]

    Dr Martin found that the applicant understood the reasons for his incarceration and the nature of the charge and case against him. Like Dr Furst, he thought the applicant’s interactions with police officers demonstrated logic and coherence, as well as a capacity to negate matters with which he did not agree.

12. [85]

    Ms Sutherland’s evidence is that she regards the applicant as fit to be tried, bearing in mind what that conclusion entails in terms of the applicant’s understanding of the charge against him and his capacity to provide an account of events, to his lawyers and the court. Ms Sutherland has been at pains to ensure at every stage that the applicant understood the case against him, and the court proceedings more generally, and could participate meaningfully in them.

13. [86]

    There can be no real suggestion that the applicant was other than in possession of the full facts of the charge against him when he pleaded guilty to the charge. He understood the case to be advanced by the Crown, and had given instructions as to the case that was to be raised on his behalf, and he was aware of all those matters which went to establish his fitness to be tried.

14. [87]

    The circumstances in which the plea was entered do not detract from its integrity.

15. [88]

    There are three features that could lead to some question as to the validity of the plea that are relied upon by the applicant: the unexpected nature of it; the applicant’s previous assertions to his lawyers of his innocence; and the applicant’s cognitive impairment. It is those matters that I will consider next.

16. [89]

    As to the first, what was perhaps most startling about the entry of the plea was not that the applicant appeared distressed or overborne in the court room, or confused about the process of arraignment, but rather, that the plea was unexpected by his legal representatives. It contradicted the purpose for which the matter had been listed, the whole premise of the proceedings that day being the need to determine issues of the admissibility of evidence preparatory to the commencement of the applicant’s trial later in the year. The applicant’s lawyers, who had been in constant contact with him, fully expected that the applicant would enter a plea of not guilty. That he entered a plea of guilty came as a surprise.

17. [90]

    That feature gave rise to, at least, the prospect of some error or mistake having occurred. That was not, however, what had transpired, something made clear by Senior Counsel for the applicant, albeit indirectly, at a time after instructions had been obtained from him, in the following exchange:

18. [91]

    It is certain that the plea was intentionally entered.

19. [92]

    Although the plea was not expected by his lawyers, the evidence is clear that the applicant himself had been thinking of changing his plea for some time. Ms Sutherland accepted that there had been occasions, perhaps four, as the applicant had observed in conference, when he had raised the prospect of a change of plea. On those occasions, the applicant’s legal representatives had discussed the matter with him, and he had thereafter continued with the indicated plea of not guilty. However, it is clear from the contents of Ex. VD1 that the applicant had nevertheless continued to think about pleading guilty. He told his lawyers that his decision to enter the plea was “not a split decision”, by which it is reasonable to conclude he intended to convey that his decision was not one taken in a split second, and the plea was not entered on the spur of the moment.

20. [93]

    That an accused person has not forewarned his or her solicitor as to the plea to be entered to a charge prior to entering it is not of itself sufficient to vitiate that plea. There is evidence in this matter that suggests that the applicant made a choice not to forewarn his solicitor, including, prominently, his statement to that effect to his representatives after he had entered the plea. When asked by Senior Counsel “Why didn’t you tell us?” the applicant responded, “I was thinking about it but I didn’t”. The reason for that choice might be found in Ex. VD1.

21. [94]

    It is tolerably clear from the 11:15am conference notes that the applicant regarded his entry of a plea of guilty as something for which he should apologise to his lawyers. His first unprompted comment to them at the commencement of the after-plea conference was, “I’m really sorry to all of you, I appreciate all your work”. That the applicant’s first thought on speaking to his lawyers after entering his plea was that he needed to apologise to them for what he had done is telling in my view. It suggests an awareness or belief that his lawyers would be disappointed in his choice, and even a concern or concluded view that they would disapprove of that choice, such that he needed to extend an apology for it.

22. [95]

    Whilst it is beyond question that the applicant’s lawyers would have acted on the instructions given to them, that is a different thing to the applicant’s likely concern or perception that his lawyers were of the view that he should plead not guilty. It is noted that the applicant told Dr Schafer that he had been advised to plead not guilty by his lawyers.

23. [96]

    His representatives had clearly told the applicant – as they were obliged to do consistent with their duty to him – that he had a good argument in disputing the Crown allegations available to him and, after the applicant entered his plea, that was repeated to him. Whilst lawyers do not tell a client what to do, they do advise, and sometimes advise strongly. The history given to Dr Schafer suggests that the applicant perceived his lawyer’s advice to be that he should plead not guilty.

24. [97]

    Even from evidence as imperfect as a record of conference notes of one discussion on 10 January 2022 it is clear to me that the applicant’s representatives considered that he had a strong defence available to him and that it was in his interests to pursue that defence. It is unlikely that the applicant would have been oblivious to that opinion, or unaffected by it, particularly having regard to the likely tendency referred to by Dr Schafer and Dr Seidler to acquiescence and compliance.

25. [98]

    That the applicant thought his lawyers would not agree with his choice to plead guilty is relatively clear, even on the limited evidence available to the Court, the applicant having chosen not to testify. Further, the applicant was aware that considerable work had been done on his behalf by those representing him and he must have been aware that that work would be, in effect, wasted by his plea. Indeed, there was some emphasis placed on the work that had been done by the legal representatives to prepare his defence in the after-plea conference that, to some extent, underscores the conclusion that the applicant made a conscious decision not to forewarn his representatives of his plea, a decision informed by his concern or belief that his lawyers would disapprove of his choice.

26. [99]

    A decision not to tell his legal representatives in advance of his decision to enter a plea of guilty – “I thought about it, but I didn’t” – cannot be regarded in these circumstances as undermining the validity of that plea.

27. [100]

    Neither do the applicant’s previous assertions to his lawyers of his innocence serve to impugn his plea. It should be obvious that there are many matters that proceed through the criminal justice system on the basis of the late entry of a plea of guilty, in circumstances where there have previously been denials of responsibility for the crime. It is not extraordinary or even uncommon that an accused person protests his or her innocence only to later plead guilty. See further Wong at [38] and [39].

28. [101]

    Of some significance is the fact that, during the after-plea conference, the applicant did not at any stage deny an intention to acknowledge his guilt by entering a plea of guilty, and nor did he assert an absence of responsibility for Dr Johnson’s death until that was raised by Senior Counsel, not as an open inquiry but, as the Crown submitted, in a way which was closed: “But you’ve said you didn’t do it”. Only then did the applicant comment on that aspect of the matter, although hardly with an emphatic assertion of innocence:

29. [102]

    When Senior Counsel told the applicant that his plea amounted to “telling the whole world that you killed Scott Johnson, and that you intended to kill him or cause him really serious harm”, the applicant’s only response was “Yep”.

30. [103]

    Having been reminded by his lawyers of his previous assertions of innocence it is not to be wondered at that the applicant would then reassert that position to them, particularly in circumstances where some emphasis was given by counsel to the work that had been undertaken by the legal representatives in preparing a defence.

31. [104]

    Despite the applicant’s assertions of innocence to his representatives, some of the applicant’s comments at the after-plea conference are, at least, suggestive of familiarity with Dr Johnson and remorse for his death, a remorse that seems to go beyond simple regret at the tragic death of a stranger. The applicant’s references to wanting to “put it to rest for Scott”, and Scott not wanting his name “dragged” through all of this, together with the applicant’s concern for the deceased’s brother, is consistent with remorse. It is not consistent with passing sadness that any person might feel for a tragedy that has affected an unconnected individual. The applicant’s comments may amount, as the Crown submitted, to indirect expressions of a consciousness of guilt, as that phrase is used and understood in the criminal law, for example, in decisions such as McKey v The Queen (2012) 219 A Crim R 227; [2012] NSWCCA 1. Whether or not they do, the expressions of grief or regret do go some way in my opinion to negate a contention that the plea entered at arraignment was not a true acknowledgment of guilt.

32. [105]

    It is difficult to accept that any innocent person who is fit to be tried, even a person who has some level of cognitive impairment, would be prepared to plead guilty to the murder of another human being simply to assuage the distress of a deceased stranger’s family, or out of respect for the stranger’s memory. In my conclusion, the applicant’s expressed apparent remorse for Dr Johnson’s death and the grief of his family rises above mere compassion, and amounts to some acknowledgment of personal responsibility and remorse for Dr Johnson’s death, consistent with an acknowledgment of having played a role in that death.

33. [106]

    Although the applicant’s reasons for his plea of guilty as given to his lawyers did not include an acknowledgment of criminal liability, but may instead be regarded as reasons consistent with self-interest, this is also relevant to the present inquiry. The applicant raised a number of benefits that he perceived would accrue to him following a plea of guilty, being that he would receive a low sentence for the crime; be relieved of the stress of the trial proceedings; and achieve his wish to put the matter of Dr Johnson’s death to rest for the deceased and the deceased’s family. These are matters that extend beyond a belief in guilt. The entry of a plea of guilty on the basis of grounds such as those asserted nevertheless constitute an admission of the elements of the crime: Meissner at 157.

34. [107]

    The final feature of some significance is the question of the applicant’s impairment. There is a dispute between the parties as to the extent of that impairment, with the applicant relying upon his “intellectual disability” and his “mental illness” to support his contention that there will be a miscarriage of justice if he is not permitted to withdraw his plea. The Crown submits that the nature and extent of the applicant’s impairment is not as clear as the applicant contends, does not raise any issue of fitness to be tried, and may rise no higher than as posited by Dr Martin. To some extent it is not necessary to fully resolve this dispute.

35. [108]

    There are arguments that might be had as to nomenclature. Ms Sutherland referred in her affidavit to the applicant having been diagnosed with an intellectual disability, a descriptive term also used in the applicant’s submissions; the Crown points out that there is no such diagnosis. Strictly speaking, the Crown is correct.

36. [109]

    Dr Schafer specifically noted that she could not formally conclude that the applicant has an intellectual disability because of the absence of information to permit her to reach necessary conclusions about the applicant’s adaptive functioning, particularly with respect to his early years. Dr Martin raised some concerns as to the reliability of the account of the applicant’s level of functioning in the community, being his adaptive functioning, information that was supplied entirely by the applicant’s sister, and which was relied upon, at least to some extent, by Dr Schafer when forming her opinions as to neurocognitive disorder.

37. [110]

    Dr Martin’s concerns appear, on the limited evidence available to the Court on this question, to be well founded. It is of some note that the account given by the applicant’s sister of the applicant’s extreme inability to function in the community is inconsistent with some things asserted by the applicant to others, such as whether or not he had or has any friends; with the accepted fact that the applicant was the sole carer for his mother for many years; and with some of the observations of Dr Furst and Dr Martin of the applicant’s capacities when engaged with interviewing and undercover police officers. Neither the applicant nor his sister have been tested in evidence as to the reliability of the assertions made to others.

38. [111]

    All of that serves to make a fully informed consideration of the precise level of the applicant’s impairment impossible. What can be readily concluded however is that the applicant is cognitively impaired; whether by an intellectual disability or through alcohol related brain damage, or a combination of both is immaterial for present purposes. I accept that he functions socially and intellectually at a level well below that of most people in the community and he is thereby disadvantaged.

39. [112]

    That is one consideration that I have kept firmly in mind when considering every aspect of the evidence and submissions advanced with respect to this application. The feature that I regard as largely determinative of the question of whether the applicant’s disability undermines the validity of his plea of guilty, of itself or when considered in the context of his anxiety on 10 January 2022 and other features identified, is that the applicant was and remains fit to be tried.

40. [113]

    All of those who examined the applicant for the purpose of commenting on his fitness were aware of the applicant’s cognitive impairment, and also his anxiety and tendency to become distressed in stressful situations. Dr Schafer specifically commented on the latter in the context of her assessment of the former. Drs Furst and Martin were informed by Dr Schafer’s report. In possession of that information, none raised any concern as to the applicant’s capacity to understand the charge brought against him, to answer that charge, and to enter a plea to it.

41. [114]

    Ms Sutherland, whose longer term knowledge of the applicant informs her opinion, also regarded and regards the applicant as fit to enter a plea.

42. [115]

    Whilst I accept that every care needs to be taken when a person with a disability who is fit to be tried appears before a court charged with a crime, that should not amount to a paternalistic view of the individual. The assessment of the applicant’s capacity to enter a plea can only be made on the basis of evidence, and the evidence is wholly in favour of a conclusion that the applicant, whether stressed and anxious or somewhat calmer than that, was able to properly and intentionally enter his plea.

43. [116]

    The only remaining matter to address is the relevance of the principle of finality. The applicant submitted that the principle must have lesser weight than it might otherwise have in circumstances where the application to vacate the plea was made very quickly after its entry, and in circumstances where the plea had not been accepted by the Court. The Crown submitted that the principle remains a relevant consideration, the speed with which the present application was made having more to do with the applicant’s openness to persuasion by his lawyers than to his own initiative.

44. [117]

    There is some force in the Crown’s submission. It is clear on the evidence that the applicant decided for himself, having thought about it over an extended period, that he wished to plead guilty. He entered that plea having thought about telling his lawyers in advance, but ultimately choosing for whatever reason not to do so. Once his plea was entered he demonstrated an immediate reluctance to discuss the matter with his lawyers, having to be cajoled into doing so.

45. [118]

    Having explained to his lawyers in conference that he had thought about the plea of guilty over time, it was at his lawyers’ suggestion rather than at his own request that the application to vacate the plea was made. After having been reminded that he had always maintained his innocence, that he had a good argument to counter the evidence to be adduced by the Crown, and that he had always previously said he would enter a plea of not guilty, the applicant’s response was only, “what do we do now”. He then acceded to the suggestion that “We will need to start again”. In the context of what had gone before, to an individual who is said to be compliant and acquiescent, the following comment from counsel, “If you want to do that”, would not have been sufficient to encourage a genuine personal choice of the matter in my opinion.

46. [119]

    In the context of this matter, the speedy application to vacate the plea says little about the validity of the plea entered, and the principle of finality has at least some relevance.

47. [120]

    In determining this application the features – not all of which have the same weight – to which the Court has had regard in summary are:

    1. (1)

       the conclusion of the relevant experts that the applicant is fit to be tried, and understands the process and consequences of entering a plea, being able to decide for himself which plea he should enter, even when anxious and distressed;

    2. (2)

       the care with which the applicant’s lawyers have informed and advised the applicant; from May 2020 and leading up to January 2022.

    3. (3)

       that the applicant’s distress on the morning of 10 January 2022 was principally directed to the conditions of his custody, and not the court proceedings;

    4. (4)

       the fact that the applicant was well supported prior to arraignment and when entering his plea of guilty;

    5. (5)

       the applicant’s calm presentation in court when he entered his plea, and the clear and emphatic manner in which the plea was entered by him;

    6. (6)

       the fact that he had thought about changing his plea previously, and his decision to do so was not one taken in haste or on the spur of the moment;

    7. (7)

       the fact that the plea was not entered by mistake, but intentionally, and in full knowledge of the nature of the charge, the evidence to be led against him, and the defence that he could make;

    8. (8)

       the consideration he gave to informing his lawyers of his decision to plead guilty prior to entering the plea, and subsequent failure to do so, the overwhelming inference being that that was by choice;

    9. (9)

       the applicant’s reluctance to discuss his change of plea with his lawyers thereafter, with a need for him to be persuaded to do so;

    10. (10)

        the applicant’s need to apologise to his lawyers for his changed plea, implicitly and inferentially because he believed they would be disappointed or disapproving;

    11. (11)

        the fact that the applicant did not raise or assert his innocence to his lawyers at the after-plea conference until it was first raised by his representatives; and

    12. (12)

        the considered reasons the applicant advanced for the plea he had entered, being reasons with both a flavour to them of remorse for and acceptance of responsibility for Dr Johnson’s death, and reasons that reflect self-interest, including a belief that a reduced sentence would follow, and a wish to avoid the stress of trial proceedings.

Conclusion

1. [121]

   Having carefully considered all of those features, the evidence and submissions, I am not persuaded that the applicant has established on balance that to permit the plea of guilty to stand would constitute a miscarriage of justice.

A Final Observation

1. [122]

   Matters such as these are typically heard in circumstances where the applicant is represented on the hearing of the application by legal practitioners other than those who were instructed at the time the impugned plea was entered. That was not the case in the present matter, and it has been necessary to consider and discuss the actions and words of the lawyers on the record.

2. [123]

   Whilst that may be regarded as giving rise to some awkwardness, nothing that has been said in these reasons should be taken as constituting any criticism of the lawyers. It is clear to the Court that Ms Sutherland and counsel have at all times and most conscientiously sought to preserve and protect the applicant’s interests, and to fulfil their duties both to him and to the Court. Nothing more could have been required of, or done by them.

3. [124]

   The Court orders that:

   1. (1)

      The application to vacate the plea of guilty to the charge of murder, entered on 10 January 2022, is refused;

   2. (2)

      The Notice of Motion filed on 11 January 2022 is dismissed.