Smith v R[2001] QDC 191

DISTRICT COURT OF QUEENSLAND

1. [1]
   The accused, Christopher Smith, represented himself at trial in the district court at Brisbane on a large number of fraud charges. The trial commenced on the twenty ninth of January 2001. Before the trial there were a significant number of mentions in the District Court in an attempt to ensure that the case ran smoothly. During those mentions, the accused was on three separate occasions, urged to obtain legal representation, however he declined to do so. He also declined the offer of a court appointed interpreter. Prior to the commencement of the trial Mr Smith was given copies of all the material upon which the Crown relied, a copy of the indictment and a copy of the crown’s opening.
2. [2]
   The accused is a 40 year old man who was born in Bulgaria. He came to Australia in 1985 as a refugee and at the time of his arrest was working for a Bulgarian company importing wine. He speaks with a heavy Bulgarian accent and his English phrasing is different to that used by someone more familiar with the language. He does however understand the English language, and although his accent and phrasing takes some time to get used to, he is quite fluent in the English language.
3. [3]
   On the fifteenth day of the trial the accused came to court and indicated that he wished to change his plea to one of guilty. After some discussion of the implications of this course his wife announced that she was concerned for him because he had not been himself of recent times and a decision was made to have him examined by a doctor. Dr Hoskins, a Government Medical Officer came to speak to him and after an interview during which the accused denied any delusions or significant health problems he decided that he was fit to plead and the pleas were taken. The matter was then adjourned over the weekend to allow the accused time to decide whether he wanted legal representation on sentence.
4. [4]
   At the further adjournment of this matter the accused indicated that he did in fact require legal representation and to that end Ryan and Bosscher were retained on his behalf. He was first seen by those representatives on the seventh of March 2001 and it was at that stage that the accused first raised the question of his mental state at the time pleas were taken. Since that time the accused has been examined by a number of psychiatrists and they are of the opinion that the accused was not at the relevant time in a fit state to enter a plea of guilty. As a result the accused has brought an application to have the plea set aside.

The current law

5. [5]
   An accused person may be allowed to withdraw a plea of guilty in circumstances where to do otherwise would amount to a miscarriage of justice. In Meissner (1995) 184 CLR 132  at 157  it was said by Dawson J:

It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.

6. [6]
           The onus of establishing that there has been a miscarriage of justice is on the accused [see R v Boag [1994]73 A Crim R35 , R v Ferrer –Esis [1991] 55 A Crim R 231]  The standard is the balance of probabilities (R v Moxham [2000] QSC unreported 29/5/2000). The power of the court to grant the application lies in the discretionary power of the court and not in s 600 of the Criminal Code. So much was recognised in R v Popovic [1964] QdR 561 at 568:

An accused person who has been committed for sentence and who had pleaded guilty before the court to which he had been committed, must, I should think, be able to point to exceptional circumstances in order successfully to invoke the exercise of the discretion in his favour.

An exceptional circumstance would, in my opinion, be where a person is not of sound mind and does not therefore understand the nature of the offence to which he is pleading. In considering that factor regard should be had to the fact that the accused was unrepresented and that English was not his first language.

7. [7]
   An argument has been advanced by the Crown that any consideration of the question of vacating the pleas includes a consideration of the strength of the crown case and the reliability of the pleas. Whilst I have no doubt that in deciding whether there has been a miscarriage of justice there must be consideration of those elements, the Crown argument goes further than that. The crown argues that a plea of guilty amounts to confession to all the elements of the offence and as such it is not inadmissible simply because it was made by a person of unsound mind  [Sinclair v R (1946) 73 CLR 316]. It is a question, it is submitted, of reliability and voluntariness. Whilst that argument may have some force where an accused person is represented or the matter was a simple matter, I am of the opinion that in this case, if the accused has proven on the balance of probabilities that he was not of sound mind at the time of entering his pleas, then a miscarriage of justice has taken place and the pleas should be vacated.

The state of mind of the accused

8. [8]
   The accused was seen by his legal representatives on the seventh of March 2001 and at that stage he said that he was not functioning properly on the day of his plea. Arrangements were subsequently made for him to see a psychiatrist with a view to vacating his plea. He was ultimately examined by three different psychiatrists. On the tenth of April he was seen by Dr White and he said there were parts of the last day that he could not recall. The Doctor concluded that he was in a confused state and that I alluded to that confused state at the time, [an observation which was incorrect]. Dr White saw Mr Smith as a person of dull average intelligence [another incorrect observation] and he   concluded that Mr Smith was suffering from an adjustment disorder arising from the stress of the court case, his dull intellect and cultural difficulties. He said he clearly did not understand what the term guilty meant [yet on the day that he changed his plea he was able to explain the meaning of the term without difficulty to Dr Hoskins].
9. [9]
   On the fourth of May 2001 Dr Estensen examined him for 2 hours. He told Dr Estensen that by the third or fourth week of the trial he was under tremendous pressure and no longer able to integrate the information to keep up with the complexities of the trial. He said there was pressure in his head and that he was only sleeping 2 or 3 hours a night. He said he was having paranoid thoughts about his family being in danger and about his being deported and there may also have been voices. He couldn’t recollect who his solicitors were. At Arthur Gorrie he reported hearing radio messages about him and thought that pieces of metal were planted in his fingers while he slept.
10. [10]
    Finally, Dr Fama saw Mr Smith on the twenty fifth of May 2001. Dr Fama saw the accused as a man with upper average intelligence. He told the doctor that in the last few days he became increasingly muddled in his thinking and he was becoming suspicious and apprehensive. He described being talked to from the radio and metal being implanted in his finger. Dr Fama finds support for the fact that he was muddled in his thinking by comments made during the course of the plea in relation to New Zealanders in coffee shops and pleading to a count to get something for it. He states in his report:

Chris’ condition seems to have improved quite rapidly after the trial ended, and after a few days in the watch-house he came to the Arthur Gorrie Correctional Centre in a pretty settled state.

The Evidence on the Application

11. [11]
    When the accused gave evidence at the hearing of this application the information upon which the opinions of the psychiatrists were based changed substantially. He claimed that he had not been able to sleep or eat in the days leading up to the last day of the trial and that he imagined that he was the reincarnation of a roman emperor. He said that he was concerned for the safety of himself and his family [and in this he was consistent with his recount to the psychiatrists]. He said that on the days leading up to the plea he was unable to make a decision and that his head felt like it was about to explode. He said that on the morning that he pleaded guilty: “I didn’t see much things around me, like, you know, you just feel like walking in someone-like in unreality or something”. He felt as though he was floating above the floor. As to the delusions of hearing voices and having metal implanted in his finger, he stated that those things did not happen until sometime after he was admitted to Arthur Gorrie and were of a less dramatic nature than that described to the doctors. He now says that he has a hard piece of glass or something lodged in his finger from an incident many years ago and one night he had a dream or something of that nature that someone had taken a piece of metal out of his finger. In relation to the radio he said that while he was in prison he was still having difficulty sleeping and one night he turned on the radio and he heard a song that he thought related to him. This episode scared him so he did not listen to the radio again. He did not assert and could not recall hearing any voices [if that was in fact what he did experience at all] prior to his incarceration.
12. [12]
    In giving evidence Dr Estensen noted that Mr Smith was very subservient on the day he entered his plea with comments like “whatever you say” to me as presiding Judge. However, it must be said that to an extent this was not an unusual feature of the way Mr Smith addressed the court. He said that the failure to mention his delusions to Dr Hoskins was consistent with his diagnosis of a psychotic episode. He obviously believed the accused and the accuracy of his symptoms at the time of his interview with him. He considered that he had disordered thought on the day of the plea and that his ability to make rational decisions was grossly impaired. He said that he seemed to be driven to plead guilty and he was trying to surrender his rights to the court. He cited his comments about meeting Bulgarians in cafes in Canada and New Zealand as examples of disordered thought. In relation to the full blown psychosis the doctor pointed to the following factors as being relevant to the accused’s case:

1. (a)
   he felt disorientated, confused, a loss of sense of reality
2. (b)
   sleep disturbed to gross level
3. (c)
   described auditory hallucinations; and
4. (d)
   impending sense of persecution.

He acknowledged that if the accused’s account of his state of mind on the day of his plea was that described by Dr Hoskins  then he was not in a psychotic state.

13. [13]
    Dr Fama was also of the view that if the accused story was true then at the time of entering his plea he was suffering under a psychogenic psychosis which caused him to loose contact with reality. However, he had concerns about the inconsistencies in his story, namely that he did not tell Dr Hoskins about any of his current symptoms and he did not tell anyone at Arthur Gorrie. On the twenty second of February 2001 the file notes at the prison record that he was calm and appropriate and physically and mentally normal. The prisoner reported no significant mental health history. On the twentieth of March 2001 an experienced mental health nurse interviewed him where it was noted there was no evidence of psychosis and he denied any history of mental illness. Further, the Doctor thought that if he retracted the delusions of the voices from the radio and the metal under the fingers from prior to the change of plea then his story was weakened considerably. In relation to his conversation with Dr Hoskins , Dr Fama said:

Dr Hoskins had been brought in specifically to inquire as to whether there was these sorts of symptoms and, according to his report, he asked particularly about these symptoms and I think it would be very hard for a man who was actively experiencing delusions to deny them to the Government Medical Officer at the time.

14. [14]
    In the end Dr Fama came to a decision that if the accused was suffering from feelings that he would be deported, and that was a delusion, rather than a misconception of his legal rights, and that he wrongly felt that his family was in danger, then the accused was unfit for trial and unfit to plead..

Discussion

15. [15]
    At the end of the day the question of fitness to plead rests on a decision on the facts as to whether the accused has proved on the balance of probabilities that he was suffering from something more than a state of anxiety induced by what was obviously a very difficult decision for him to reach. He told Dr Hoskins that it required a lot of courage.
16. [16]
    It seems to me that there have been assumptions made by the Doctors that have not ultimately been borne out by the evidence. Dr White talks about analysing the evidence and finding that the accused asked fewer questions towards the end of the trial than the start and this supports the contention that he had lost the trail of the evidence. I am not convinced that this is so.
17. [17]
    An analysis of the trial record shows that the first week of the trial was essentially spent in voir dire exploring matters that the accused had repeatedly raised in pretrial mentions. It was clear by the time the trial started that the accused had a view that this whole case was essentially a fabrication by the arresting officer who had manipulated the evidence, obtained illegal warrants and induced Nenkov [his co-accused] to give false evidence against him. A lot of the evidence was directed to proving the case circumstantially, but relied on the evidence of Nenkov to tie it all together. The accused was therefore very involved in trying to prove at the preliminary stage of the trial that the evidence was illegally obtained by the arresting officer. The trial finally began before the jury on day five and the co-accused began to give evidence. He gave evidence until the end of day eight and he was without doubt the most important witness in the trial. Not surprisingly, the accused cross-examined him at length and it must be said that Nenkov was not shaken in any significant way in his evidence. From day nine the evidence started to go into the more formal parts of the evidence from bank tellers and sales assistants. Where there was evidence of identification of items or people the accused asked questions in cross-examination. Otherwise there were short questions, where appropriate, to determine a witnesses connection to the arresting officer. On day eleven the arresting officer started giving evidence and he was cross-examined on day twelve at length. On day twelve the accused was sufficiently possessed of his faculties to be able to discuss a constitutional point and to have located and quote from a section of the constitution. On day thirteen the accused cross-examined another police officer who was heavily involved in the case. He was able to draw together the evidence of others to cross-examine and he was able to remember dates. On day fourteen I raised with the accused that he hadn’t cross-examined witnesses on points that he had previously raised as being important to his case. He was at that stage able to indicate that he intended to cross-examine the arresting officer about the matter and therefore did not need to ask the bank people about it. There does not therefore seem to be a lot of support for the proposition that he was unable to keep track of the case because of his failure to ask a lot of questions in the last week.
18. [18]
    The crown by the fifteenth day of the trial had called a series of witnesses which had proved that a selection of goods found in the accused possession had been obtained by fraud and that a car in their possession had been altered to disguise it’s true identity. If the accused did not have a full appreciation of the strength of the crown case before the trial commenced, it was evident by that stage of the trial and that it was likely that the accused would be convicted .
19. [19]
    At the end of the third week the accused announced his desire to change his plea to one of guilty. Given his previous suggestions to the police and his request on occasions to have the prosecutor and others charged with false arrest and or false imprisonment, the change was a surprise. However, it seemed to reflect a realisation that the Crown case was one that was looking very strong. At the time of taking the plea the accused appeared to be somewhat resigned to his fate and a person who had made a momentous decision. That decision obviously came at some personal expense as his presence in court was absent of his wife who had acted as his assistant throughout the course of the trial. He indicated that there had been conflict with his wife over his decision to change his plea. His demeanour was consistent with his comment to Dr Hoskins that what he had done had been bothering him and he had to work up the courage to face it.
20. [20]
    The accused in deciding to plead guilty appears to have done so out of a genuine consciousness of guilt, making comments such as “I realise I make some mistake and I am just a human being I am not perfect”, and telling Dr Hoskins that he had done the crime and had to admit what he had done. It has been said that the accused showed confusion in his comments that he had met Bulgarians from Canada and New Zealand in coffee shops and that he would be happy to put his name to the ANZ charges to get something for the sentences. In my view those passages demonstrate the opposite. The references to the meetings in coffee shops was a reference to the travel overseas and how apparently wherever he travelled he met with fellow Bulgarians who in turn introduced him to others. In referring to the ANZ charges he was referring to technical difficulties that the crown was having complying with the evidentiary provisions of the evidence act in relation to the admission of computer records. It was simply an indication that he did not require strict proof of those records because he wanted to plead guilty.
21. [21]
    To say that the accused was determined to plead guilty is not in my view borne out by his comments on that day. In indicating that he wanted to plead guilty he was still eager to play down his involvement in the offences. He did not merely answer yes to the series of questions about his acceptance of the case against him as can be easily seen from an examination of the transcript [at 993 & 994].  His wife, who was a co-accused of the accused and was opposed to his entering the guilty pleas, indicated that he was not himself at the time however she did not elaborate on that matter and she did not give evidence on this application, so little weight can now be given to that assertion in my view. When examined by Dr Hoskins, a man who regularly sees people in this sort of situation, he denied any delusions and also did not indicate any significant sleep disturbance or inability to eat. Having told Dr Estensen and his legal representatives of his memory disturbance he had little difficulty on the nineteenth of February 2001 in advising the court of the names of a number of previous solicitors. Mr Smith at that mention was coherent enough to apply for bail and offer his surety of $10000. In the afternoon having spoken to Legal Aid he again indicated that he realised that he had done the wrong thing and wished to surrender his surety in return for a non- custodial sentence. It was explained to him that even with $10,000 restitution it was likely that he would serve time in prison. The matter was then set for mention on the twenty sixth of February 2001 to set a date for sentence. It was at some stage after that that the accused first raised the question of soundness of mind with his legal representatives.

Conclusion

22. [22]
    The accused in giving evidence on this application has been inconsistent in his account to the psychiatrists and in my view on significant matters. In cross examination he gave answers to questions about his responses on the last two days of court which significantly impair his credit. I am not prepared to accept his evidence in relation to his state of mind where it differs from the account that he provided on the day to Dr Hoskins. I am of the view that those statement reflected his state of mind at the time and that accordingly he was not of unsound mind or unfit to plead at the time he entered his pleas of guilty. The accused has failed to demonstrate any miscarriage of justice has occurred. Accordingly, the application for change of plea is refused.