McQuillan v R (No 2)

1. [1]

   In February 2021 Ms McQuillan was convicted in the Forster Local Court of larceny as a bailee, an offence under s 125 of the Crimes Act 1900 (NSW), having initially pleaded not guilty, she had then entered a guilty plea before McCosker LCM. The charge was that Ms McQuillan had fraudulently converted a hire car into her own property. The change in her plea followed legal advice from her then solicitor Mr Young, that she had no defence to that offence for the period between 19 and 25 February 2021.

2. [2]

   The matter was then listed for sentence. Ms McQuillan later sought and was refused leave by Hawkins LCM to withdraw her plea under s 207 of the Criminal Procedure Act 1986 (NSW). Initially Hawkings LCM recused herself but later, at the hearing of the application, her Honour presided.

3. [3]

   Ms McQuillan’s case, then being represented by Mr Kogias, was that her plea had been entered without a genuine consciousness of guilt and under pressure, at a time when she understood that the case would proceed under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), rather than by way of sentence at law.

4. [4]

   There was an evidentiary dispute about whether Ms McQuillan had discussed the matter proceeding under s 32 with Mr Young. There was no notation of this on the Court file and no reference to it in a statutory declaration Mr Young had made. By the time of the hearing it appears that McCosker LCM had unfortunately died and Mr Young was seemingly very unwell, a matter which her Honour raised.

5. [5]

   There is no question that the hearing of the withdrawal application took an unusual course, which on this appeal led to the parties’ agreement that orders upholding the appeal had to be made.

Orders made at the hearing of the appeal

1. [6]

   At that hearing it was conceded by the defence that in the circumstances which have arisen for consideration by this Court on appeal, Ms McQuillan should be granted leave to appeal and that the matter should be remitted to the Local Court, to be dealt with according to law, by a different magistrate.

2. [7]

   Still a basis for the grant of such leave must be established, if the orders agreed are to be made. That was thus addressed by the parties at the hearing. Having considered the evidence and heard the parties I then made the orders which the parties had agreed.

3. [8]

   These are the reasons which satisfied me that justice required that those orders be made.

The appeal

1. [9]

   By her summons Ms McQuillan sought an extension of time to appeal, leave to appeal and to appeal against the refusal of the withdrawal application: s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). In December 2022 Yehia J granted a stay of the Local Court proceedings pending hearing of the summons, in circumstances where the sentence hearing was also fixed for the following day before Hawkins LCM: McQuillan v R (Supreme Court (NSW), Yehia J, 7 December 2022, unrep).

2. [10]

   Yehia J concluded that in the circumstances justice required the grant of the stay, given that her Honour had indicated that there would be no further adjournments granted to Ms McQuillan, pending the hearing of these proceedings.

3. [11]

   The grounds of appeal advanced were:

4. [12]

   While it was not accepted that all of these grounds were made out, it was common ground that the evidence established apprehended bias and other errors warranting the extension of time to appeal, leave to appeal being granted, the appeal upheld and the matter being remitted.

Issues

1. [13]

   Pertinently, the parties’ cases raised questions about whether:

   1. (1)

      there was a basis for claimed actual and apprehended bias on the part of Hawkins LCM, when the application for leave to withdraw the plea was refused;

   2. (2)

      Ms McQuillan was denied procedural fairness and natural justice on the hearing of that application;

   3. (3)

      Mr Young’s statutory declaration was properly admitted into evidence, given the applicable requirements of the Evidence Act 1995 (NSW); and

   4. (4)

      the application to withdraw the plea had been correctly heard and refused, the starting point for consideration of such an application being whether a miscarriage of justice had occurred, or would occur, should the sentence proceed: R v Boag (1994) 73 A Crim R 35 at 36.

Apprehended bias

1. [14]

   The proceedings had been pursued in the Local Court with some apparent difficulty, at the time of the COVID-19 pandemic. Reference was also made in the evidence to the impact of floods. The matter had come before the Local Court on many occasions, before the hearing which generated this appeal, a matter which her Honour took into account adversely to Ms McQuillan’s application, together with what was known about her prior record.

2. [15]

   It was common ground that earlier in the proceedings, a question of recusal by her Honour had arisen. The view her Honour then took was that she would not hear the matter, given that Mr Young was to be cross-examined. At the hearing of the withdrawal application, that was raised by Mr Kogias:

3. [16]

   From the transcript it is apparent that Mr Kogias understood as a result of this exchange that Mr Young’s statutory declaration would not be used. But it was later tendered by the prosecution, after Mr Kogias had indicated the documents he would rely on, which included Ms McQuillan’s ERISP statement, her September 2020 affidavit and “court bench papers”. After discussion about what was on the Court file, Mr Kogias said:

4. [17]

   After discussion about an affidavit which had been sworn by Ms McQuillan’s aunt, who had had discussions with Mr Charles Waterstreet about appearing; whether he was then on the roll and had spoken to Mr Young and given advice about the matter as a family friend, at a time when he was no longer in practice.

5. [18]

   The transcript does not make clear whether the affidavit was received. Indeed, none of the documents relied on were marked as exhibits, making unclear what was before the Court, particularly what was referred to as “court bench papers”.

6. [19]

   The prosecution then tendered Mr Young’s declaration, contrary to Mr Korgias’ understanding. This led to exchanges including:

7. [20]

   Ms McQuillan was then called to give oral evidence, which included that neither Mr Young nor anyone from his office had earlier discussed the matter with her; explained steps she had taken to extend the vehicle hire on 14 February, as well as her discussion with Mr Young about her medical condition and problems with medication at the time of her arrest.

8. [21]

   Ms McQuillan was cross-examined about her discussions with Mr Young about the charge, which she accepted resulted in her understanding it; their discussions of her options on the morning of the hearing and that her bail would be revoked; his advice that she would be convicted by McCosker LCM if she persisted in her not guilty plea; and her instruction that she had been late in returning the vehicle but had not intended to steal it. Her evidence included that:

9. [22]

   Later Ms McQuillan said that what she wanted to do on that day was to lodge a s 32 application. She agreed that she had changed her plea to guilty on Mr Young’s advice and it was put to her:

10. [23]

    In re-examination Ms McQuillan said that Mr Young withdrew when she expressed her shock at the next hearing, when he advised her that a s 32 application would not be lodged.

11. [24]

    Her Honour then interrupted the questioning and said:

12. [25]

    Ms McQuillan was then asked further questions about these events; her attendance at various return dates; and Mr Young’s advice about those attendances.

13. [26]

    The prosecutor then confirmed that the only evidence relied on was Mr Young’s declaration.

14. [27]

    The case Mr Kogias advanced on the withdrawal application addressed difficulties in obtaining legal aid funding for a psychiatric report and the circumstances in which Mr Young had withdrawn. The submission was that Ms McQuillan had an arguable case and that it was in the interests of justice to permit her to withdraw her plea, in circumstances where she had returned the car late; had attempted to pay for the extra time; where she was having financial difficulties because her child support payments had not been made by her husband; when she had not sought to deprive Hertz of its possession of the vehicle; and there being evidence that payment had later been made. It followed that the necessary mens rea could not be established.

15. [28]

    The decision was given by Hawkins LCM later in the day. After analysing Ms McQuillan’s evidence and her history of attendance when the matter was before the Court, before turning to Mr Young’s evidence, her Honour observed:

16. [29]

    The parties had not led evidence about this.

17. [30]

    Her Honour then referred to Mr Young’s evidence that he had advised Ms McQuillan that she had no defence to the period after 19 February and her resulting options, with the result entry of a plea to modified facts and that he withdrew when Ms McQuillan later instructed she wished to withdraw her plea. Her Honour observed that Mr Young had made no reference to discussing any mental health application and no notation about that was on the file.

18. [31]

    Her Honour concluded that it followed that Ms McQuillan’s evidence about a s 32 application was unsupported, with the result that it was not accepted that she had an expectation that a s 32 application would happen.

19. [32]

    Her Honour thus concluded that the plea entered had not been imprudent or induced by threats or misrepresentation, or that there had been any plan to get a s 32, but for the pragmatic purpose of avoiding going to jail that day.

20. [33]

    The course which the hearing took led, on appeal, to a disagreement between the parties about what was before the Local Court; whether there had been any objection to the receipt of Mr Young’s statutory declaration; and whether he was unavailable.

21. [34]

    The latter, it should be noted, was governed in criminal proceedings by s 65 of the Evidence Act. In such adversarial proceedings it was, of course, for the parties to raise and respond to the question of admissibility and not to be raised and pronounced upon by the presiding judicial officer, without evidence or hearing the parties.

22. [35]

    These difficulties are entirely bound up with the matters which the parties agree establish her Honour’s apprehended bias, in circumstances which ought to have led her to persist in her recusal. But clearly, the way in which the question of unavailability was raised and determined was inappropriate and supports the conclusion that the orders which the parties agreed should be made.

23. [36]

    On this appeal there was no issue about:

    1. (1)

       the applicable principles or that their application in this case had to result in the conclusion that features of the conduct of her Honour’s hearing of Ms McQuillan’s withdrawal application might give rise to a reasonable apprehension that she might not have brought an impartial and unprejudiced mind to the application: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; or

    2. (2)

       that this apprehension arose from a direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in the proceedings, in this case Ms McQuillan, Mr Young and his daughter Ms Young, who her Honour also mentioned: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [30].

24. [37]

    There was a question addressed about the time of making a disqualification application, required to be made as soon as reasonably practicable after the relevant facts become known, failing which the right may be waived: Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44. But given the way that these proceedings unfolded, and the pre-existing associations were revealed, including in her Honour’s judgment, it was common ground that this timing could not preclude the orders sought being made: Vakauta at [572]. I agree.

25. [38]

    It was also common ground that apprehended bias was established by:

    1. (1)

       her Honour having earlier recused herself from hearing the proceedings because of Mr Young’s involvement as a witness, for reasons not then given, but which stemmed from the need for him to be cross-examined;

    2. (2)

       her Honour’s failure later to recuse herself when the withdrawal application came before her and Mr Young’s statutory declaration was received into evidence, given the knowledge she then disclosed having about Mr Young and his serious ill health and her view that it would be inhumane to permit him to be cross-examined;

    3. (3)

       this suggesting that if Mr Young were to be cross-examined as to credit, given the issues lying between the parties, her Honour would feel compelled to accept his version, or would not bring an unbiased mind to the evaluation of his evidence;

    4. (4)

       these circumstances being capable of leading a fair-minded lay observer to conclude that the association with Mr Young being sufficient to justify her Honour’s recusal if he was to give evidence, might also affect her capacity to bring an impartial mind to the evaluation of his statutory declaration;

    5. (5)

       her Honour having also referred to her views about the experience and competence of Mr Young’s daughter, Ms Young, also a solicitor, who had provided some assistance in the matter. By the reasons given, this appeared to have bolstered her Honour’s preference for the evidence of Mr Young over that of Ms McQuillan;

    6. (6)

       Ms McQuillan’s unchallenged evidence, despite there being no note on the Court file of an intention to make a s 32 application, that she had discussed such an application with Mr Young and having been cross-examined on the basis that she had been motivated to change her plea, in order to seek a mental health outcome, her Honour was still not persuaded that any discussion of a s 32 application had taken place between Ms McQuillan and Mr Young; and

    7. (7)

       a fair minded lay observer thus also concluding that her Honour may not have been impartial in her evaluation of the competing evidence actually led at the hearing.

26. [39]

    I am also satisfied that the existence of the required disqualifying association between her Honour and Mr Young was established on the evidence. Further, that it was such that a fair minded observer could consider that her Honour’s associations with Mr Young and Ms Young would divert her Honour from deciding this case solely on its merits: Ebner at [30].

27. [40]

    Given that her Honour had earlier considered it necessary to recuse herself, no doubt given the applicable principles, from a hearing that involved the assessment of conflicting evidence given by Mr Young and Ms McQuillan, it must be accepted that the same result necessarily had to be arrived at when what had to be decided turned on a statutory declaration about which Mr Young could not be cross-examined.

28. [41]

    That Mr Young could not be cross-examined should have reinforced the conclusion that there was a need for recusal, because necessarily, a determination about whose evidence about the making of a s 32 application should be preferred, his or Ms McQuillan’s, had to be arrived at, given the course her Honour pursued, without the benefit of the usual cross-examination of Mr Young.

29. [42]

    The circumstances of her Honour’s association and acquaintanceship with Mr Young were not altered by the inability to call him, a matter which her Honour raised and determined, without application by the prosecution or having heard Mr Kogias. That should have resulted in the same outcome, recusal, given the connection which existed and had already been accepted by her Honour as giving rise to an apprehension about the possibility of deviation from impartial decision making: Smits v Roach (2006) 227 CLR 423; [2006] HCA 36.

Denial of procedural fairness and natural justice

1. [43]

   That a greater degree of formality and process in the tendering and receipt of evidence at the hearing would have been desirable, was also common ground on appeal.

2. [44]

   The amended facts on which the matter proceeded were unsigned, but consistent with Mr Young’s evidence that a negotiated plea had been entered.

3. [45]

   Still, it was agreed that there was force in the complaint made about the handling of the evidence and that as a matter of procedural fairness, given that Mr Young could not be cross-examined, less weight should have been given to the absence of any reference in his affidavit to a s 32 application.

4. [46]

   Neither that nor the absence of a notation about such an application on the court file was determinative of whether Ms McQuillan had discussed such an application with Ms Young. Ms McQuillan’s unchallenged evidence was the only evidence before the Court on that question, but still she was not believed.

5. [47]

   The parties’ acceptance that in all these circumstances, there had been a denial of procedural fairness, has obvious force and must also be accepted.

The refusal of the application to withdraw the plea

1. [48]

   The conclusions which her Honour arrived at, that the plea had involved a free and voluntary confession, necessarily depended on an assessment of the evidence of Ms McQuillan and Mr Young. Her Honour’s conclusions included that:

2. [49]

   The Crown case was that despite the problems flowing from the apprehended bias established, there had been no error in taking such matters into account, it being settled that there is no miscarriage from reliance on a plea, even if the person is in truth not guilty and that a plea freely and voluntarily entered may be accepted by a court: Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 at 141.

3. [50]

   But that does not mean that an understanding that the offence to which the plea entered was to be dealt with under s 32 of the Mental Health Act is irrelevant, in determining whether a confession has been freely and voluntarily made. Entry of a plea by a person who is in a position where they should be dealt with under that provision, is undoubtedly a matter to be taken into account in determining whether a person has entered a plea freely and voluntarily. After all, such a person may or may not be capable of forming a consciousness of guilt.

4. [51]

   Ms McQuillan’s evidence was that she had reluctantly accepted Mr Young’s advice to change her plea, against her better judgment, a decision which she later regretted, because she wanted a s 32 assessment given mitigating factors she referred to, saying “I don’t know what’s wrong with that”.

5. [52]

   There was evidence of Ms McQuillan’s familiarity with the criminal justice system to which her Honour referred, given her criminal record; that the matter had been before the Court 13 times; and a text message to Mr Young that she was still waiting for a copy of a psychiatric report.

6. [53]

   That all of this could not have affected entry of Ms McQuillan’s plea as the result of mistake or other circumstance affecting its integrity, as her Honour found, does not follow.

7. [54]

   Her Honour also rejected Ms McQuillan’s evidence that Mr Young had told her that they were not prepared for the hearing. Her Honour also concluded that Ms McQuillan’s plea could not have been induced by undue or improper pressure, given her demonstrated ability to assert herself, even though it was common ground that she had not seen the agreed facts tendered on the plea.

8. [55]

   The defence case was that no error of law arose from these findings and that the plea Ms McQuillan entered was aptly described as a “plea of convenience”, rather than one not freely and voluntarily entered for reasons other than a genuine consciousness of guilt.

9. [56]

   I am not satisfied that this can be accepted.

10. [57]

    It may not be overlooked that her Honour’s conclusions were all arrived at by a trier of fact who should have recused herself, given her associations with Mr Young and his daughter. These assessments ought all to have been undertaken by a trier of fact about whom questions of apprehended bias did not arise.

11. [58]

    The approach wrongly adopted resulted in the hearing miscarrying, so that the appeal must be upheld and the matter remitted, as the parties agreed.

Orders

1. [59]

   It was for these reasons that I made the following orders:

   1. (1)

      Leave to amend the Plaintiff's Summons be granted.

   2. (2)

      Amend Summons to remove the Crown as a respondent/defendant.

   3. (3)

      Grant an extension of time to lodge the appeal.

   4. (4)

      Leave to appeal be granted.

   5. (5)

      The appeal be allowed.

   6. (6)

      Set aside the interlocutory order of the Local Court at Forster made on 30 September 2022 disallowing the withdrawal or traversal of the guilty plea in the matter R v Jasmine McQuillan bearing JusticeLink file No. 2020/0061374.

   7. (7)

      Remit the proceedings to the Local Court to be dealt with by a different Magistrate according to Law.

   8. (8)

      Second Respondent to pay the Applicant's costs as agreed or assessed.