Reported Decision : 122 A Crim R 310 New South Wales Court of Criminal Appeal CITATION : R v Wilkes [2001] NSWCCA 97 revised - 27/04/2001 FILE NUMBER(S) : CCA 60279/00 HEARING DATE(S) : 21 March 2001 JUDGMENT DATE : 21 March 2001 PARTIES : Regina Stephen John Wilkes JUDGMENT OF : Giles JA at 52; Wood CJ at CL at 1; Simpson J at 53 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Adams J OFFICER : COUNSEL : Crown R.D. Cogswell SC with Ms B. Baker Appellant: T. Game SC SOLICITORS : S.E. O'Connor (DPP) D.G. Humphries (LAC) CATCHWORDS : CRIMINAL LAW - appeals - appeal against conviction - murder - refusal to allow withdrawal of plea of guilty - plea entered in circumstances amounting to a miscarriage of justice - advice of trial Counsel to enter plea of guilty imprudent and inappropriate Criminal Appeals Act 1912 s 6 LEGISLATION CITED : Criminal Law Procedure Act 1986 s 91 Evidence Act 1995 s 38 DECISION : Conviction set aside; New trial ordered IN THE COURT OF CRIMINAL APPEAL No. 60279 of 2000 GILES JA WOOD CJ at CL SIMPSON J 21 March 2001 Regina v Wilkes JUDGMENT The appellant was indicted on one count of murder. He pleaded not guilty. On the second day of the trial, his brother was cross-examined by the Crown pursuant to s 38 Evidence Act 1995. The brother gave evidence that he saw the appellant strike the deceased with a wooden paling. Following this evidence, trial Counsel advised the appellant that they would lose the case and suggested that he enter a plea of guilty to save some years off his sentence. Shortly after this conversation the appellant advised the Court he wished to change his plea, and a plea of guilty was formally entered. When the appellant next appeared for sentence he sought leave to withdraw his plea, having been advised in the meantime by trial Counsel that he considered his earlier advice to have been incorrect. The appellant appeals on the grounds that (1) the trial judge erred in refusing leave to withdraw the plea of guilty; (2) the plea was entered in circumstances amounting to a miscarriage of justice under s 6 Criminal Appeal Act. Held: (Allowing the appeal): Ground 1: the trial judge erred in refusing leave to withdraw the plea of guilty The announcement by the trial Judge that "I formally enter a verdict of guilty" constituted a finding that the appellant was guilty of the offence charged, within the meaning of s 91 Criminal Procedure Act. The course taken by the trial Judge constituted an acceptance of the plea and a finding of guilt, such that it was too late for the appellant later to withdraw the plea. Chiron (180) NSWLR 218 applied. Maxwell (1996) 184 CLR 501; Hura (2001) NSWCCA 61 considered. Ground 2: the plea was entered in circumstances amounting to a miscarriage of justice under s 6 Criminal Appeal Act A plea of guilty must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt.. If a plea is not entered into as a genuine recognition of guilt, and if there is a real question about the guilt of the accused, the proper course is to set aside the plea of guilty and quash the conviction. A court may go behind a plea of guilty and allow it to be withdrawn in appropriate circumstances, or to entertain an appeal against conviction where it is too late to withdraw it. Among those circumstances are those of an accused who is persuaded to enter a plea of guilty by reason of the imprudent and inappropriate advice tendered by his legal representatives. In the instant case the advice given to the appellant was inappropriate. The evidence before the Court indicated that his plea was not attributable to a consciousness of guilt and there was a real question as to his guilt. Maxwell (1996) 184 CLR 501; Hura (2001) NSWCCA 61; Kouroumalos (2000) NSWCCA 453 Favero (1999) NSWCCA 320; Whitehead (2000) NSWCCA 400; Ganderton NSWCCA 17 September 1998 applied. ORDERS PROPOSED (1) Appeal against conviction allowed. (2) Conviction set aside and a new trial ordered. IN THE COURT OF CRIMINAL APPEAL 060279/00 GILES J WOOD CJ AT CL SIMPSON J WEDNESDAY, 21 MARCH 2001 STEPHEN JOHN WILKES v REGINA JUDGMENT 1 WOOD CJ AT CL: The appellant was indicted before Adams J at the Newcastle Supreme Court on 6 March 2000 with a count of murder. He pleaded that he was not guilty whereupon his trial began before Adams J and a jury of twelve. The Background 2 On the following day, during the course of the evidence of his brother John Wilkes, the Crown sought and obtained leave to cross-examine that witness under section 38 of the Evidence Act. Leave was granted upon the basis that the witness had given evidence contradictory of his statement and as such, was regarded as adverse to the Crown. 3 Leave having been granted, the witness described seeing the appellant strike the deceased Thomas Dungay a couple of times with a wooden paling while he was lying on the ground, at the caravan park in Kempsey where the alleged offence occurred. Mr John Wilkes denied having been personally involved in the incident which led to the deceased dying of head injuries. 4 Following this development, the public defender appearing for the appellant, indicated that this was something that he had not foreshadowed since it had not been disclosed in any of the statements or documents provided to the defence. His Honour questioned the accuracy of that statement and said that the evidence should proceed. Within a few further questions the witness became distressed and the court then adjourned, as events turned out, until 2 pm. There was, relevantly, it would appear from the court record, a break between 12.25 and 2 pm. 5 During this period, Counsel spoke to the appellant twice in conference, together with his instructing solicitor. What occurred in those conferences has been set out in an affidavit from Counsel. In substance, he conveyed to the appellant that Mr John Wilkes' evidence meant that the case would be lost and that by pleading guilty, the appellant could save some years off the sentence that would be imposed. Counsel's advice, accordingly, was that he should plead guilty since there was no effective way of defending the case. The appellant said in response to this advice, "Well, if I've got no chance, I might as well plead guilty". To the precise terms of the advice given, and of the appellant's instructions, I will return in a little more detail when I consider the relevant ground of appeal. 6 When the court resumed at 2 pm, his Honour was advised that the appellant had decided to change his plea. He was re-arraigned in the presence of the jury and pleaded guilty to the charge of murder. The transcript records that his Honour dealt with the matter at that point as follows: "HIS HONOUR: Ladies and gentlemen, in light of the plea of guilty, I am authorised to enter a conviction of murder against the accused, without taking a further verdict from you. That is so, Mr Crown? CROWN PROSECUTOR: Indeed it is, your Honour. HIS HONOUR: And accordingly, it is unnecessary, you having heard the admission of the accused to all the elements of the crime, for this trial to proceed. JURY DISCHARGED. HIS HONOUR: … in light of your client's plea, I formally enter a verdict of guilty." 7 At the request of Counsel, the proceedings were then stood over to 12 May for sentence, and a pre-sentence report was ordered. 8 On 15 March 2000, Counsel went to Silverwater Gaol to see the appellant. There he said to him that he believed that he had given him the wrong advice concerning the entry of a plea of guilty and suggested that he should seek new legal representation. Three days later the appellant informed Counsel that he would like to follow that course. 9 When he appeared for sentence on 12 May 2000, the appellant was represented by Mr Scragg of counsel, who had been briefed in place of trial Counsel. Application was made on his behalf for leave to withdraw the plea of guilty. That course was opposed by the Crown Prosecutor upon the basis that, a verdict of guilty having been entered, section 91 of the Criminal Law Procedure Act 1986 meant that it was impossible for the plea to be withdrawn. His Honour accepted this submission which was in accordance with the decision of Lee CJ at CL in Chiron (1980) NSWLR 218 at 226 to 227. The application was accordingly refused. Grounds Of Appeal 10 It is convenient to deal first with the ground of appeal concerning the application made on 12 May. "The trial judge erred in refusing leave to withdraw the plea of guilty". 11 This ground was but faintly pursued to protect the appellant's position. It was accepted that, on the basis of Chiron, the announcement by his Honour, "I formally enter a verdict of guilty," and the notation in his Honour's bench book, "Formally enter a verdict of guilty", constituted a finding that the appellant was guilty of the offence charged within the meaning of section 91 of the Criminal Procedure Act 1986. 12 That it had such effect was in fact supported by the recent decision of this court in Hura (2001) NSW CCA 61 which held that the word "finding" in the section should not be given an overly technical meaning. Spigelman CJ, with whom Simpson J and Carruthers AJ agreed, rejected the view that there had to be a finding of guilt in express terms. In coming to that conclusion, his Honour had regard to the various observations in Maxwell (1996) 184 CLR 501, particularly in the joint judgments of Gaudron J and Gummow J at 531 and of Dawson J and McHugh J at 509, as to what was required for a determination of guilt by the Court. 13 In the light of these judgments, there can be no doubt that the course taken by his Honour constituted an acceptance of the plea, and a finding of guilt, such that it was too late for the appellant to withdraw the plea on 12 May 2000. This ground of appeal fails. "The plea was entered in circumstances amounting to a miscarriage of justice under section 6 of the Criminal Appeal Act". 14 Although considered in the different context of an application to withdraw a plea, Hunt CJ at CL observed in Boag (1994) 73 A Crim R 35 at 36, that leave will be given for that purpose where the applicant shows that there has been a miscarriage of justice. His Honour went on to say: "A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety, when he would not otherwise have pleaded guilty. The authorities are collected and discussed in Chiron (at 235), in Sagiv (1986) 22 ACR 73 at 80-81; Bell (1987) 8 NSWLR 311 at 314/315; and in Davies (unreported, Court of Criminal Appeal, NSW, 16 December 1993) at pp 2-5, 7-9. See also Jupp (unreported, Court of Criminal Appeal, 23 November 1993) at pp 2-3. As Badgery-Parker J said in Davies (at p 8), there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt." 15 His Honour made observations to similar effect in Cincotta NSW CCA 1 November 1995 at page 1, as did Scholl J in Murphy (1965) VR 187 at 191. In Maxwell Dawson J and McHugh J said at 510 to 511: "An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise. The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty. That is illustrated by R v Martin where the trial judge, the Chief Justice, suggested that the accused should enter a plea of not guilty. The accused declined to do so and insisted upon pleading guilty. Upon a case stated by the Chief Justice, the judgment of the court was delivered by Owen J, who said: 'It has been said that a plea of not guilty should have been entered, but it appears to me that where a man who evidently knows what he is about insists upon recording a plea of guilty, the Judge cannot interfere. If there is any doubt as to the nature of the plea, or any reason to suppose that the accused is not thoroughly aware of what he is doing, a plea of not guilty should be entered; but I can see no reason why the Chief Justice should have taken that course in this instance.'" 16 To similar effect were the observations of Toohey and McHugh JJ in Meissner (1995) 184 CLR 132 at 142. Moreover, in Davies NSW CCA 16 December 1993, a decision cited with approval in Ganderton NSW CCA 17 September 1998, Favero (1999) NSW CCA 320, Toro Martinez (2000) NSW CCA 216 and most recently in Hura, Badgery-Parker J, with whom the remainder of the bench agreed, said: "The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts (see the passage cited earlier from the judgment of Lee J in Sagiv ) and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea 'was not really attributable to a genuine consciousness of guilt' (per Scholl J in Murphy supra). If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Justice Scholl 'an issuable question of guilt' - to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial." 17 Conveniently in Hura at paragraph 32 and 33 Spigelman CJ summarised the circumstances in which the court will upon the authorities, set aside a conviction following a plea. 18 In Kouroumalos (2000) NSW CCA 453 I also had occasion to consider some of the circumstances in which this court will go behind a plea of guilty and allow it either to be withdrawn in appropriate circumstances, or to entertain an appeal against conviction where it is too late to withdraw it. Among those circumstances which were identified were those of an accused who is persuaded to enter a plea by reason of the imprudent and inappropriate advice tended by his legal representatives. 19 Illustrations of such cases can be seen in Favero (1999) NSW CCA 320, Whitehead (2000) NSW CCA 400 and Ganderton NSW CCA 17 September 1998. It is into that line of case that the present case falls. 20 The principles established by these decisions are now settled. As a consequence, the present appeal hinges upon three considerations: a) whether the advice given to the appellant was or was not imprudent and inappropriate; b) whether his plea was or was not attributable to a consciousness of guilt; and c) whether the material before this court shows that there is or is not a real question about his guilt. 21 Before parting from these principles, I observe that in Liberti (1991) 55 A Crim R 120 Kirby P observed at 122: "For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81." 22 That proposition was taken up by Hunt CJ at CL in Boag and the circumspection or restraint which their Honours noted does need to be respected. 23 The terms of the advice given by counsel, and the appellant's reaction to it in the form of instructions, appear from the affidavits filed in support of the appeal. The affidavits of trial Counsel reveal that, during the first conference which followed the evidence given by John Wilkes, he said to the appellant: "(i) 'John Wilkes' evidence and the way it has come out means you are going to lose this case.' (ii) 'You should consider pleading guilty. It might or will save you at least two years in gaol.' (iii) 'Your own brother is saying he saw you do it. The jury will believe him.' (iv) There is no effective way of cross-examining him after what the jury has seen.' (v) 'His evidence is going to confirm exactly the identification evidence which Mr and Mrs Slappendel are going to give (and be confirmed by it).' (vi) 'It doesn't matter what other witnesses still to be called will say, even if they support your account of having been knocked unconscious.' (vii) 'The idea that you were drunk/knocked out/can't remember doing anything like this won't help us because this piece of evidence is so strong.' (viii) 'Although we can guess that in the future, in explaining this evidence to your family, John Wilkes will probably say that the police forced him to say it, that idea won't help us now.' (ix) 'You can be virtually certain that you are going to be found guilty.' (x) 'Although the decision is yours and although I will fight on if you want to, we are going to lose this case.' (xi) 'If you are considering pleading guilty I think it is the right decision and it will definitely save you a couple of years in gaol.' (xii) 'If you want more time, it is an important decision, I will tell the Judge that we are genuinely considering a plea of guilty and we need until 2.00 pm.'" 24 The affidavit further discloses that the appellant responded to this advice as follows: "(i) 'John Wilkes would be lying. He and Scotty Payne are really close and they will cover up for each other.' (ii) 'Won't the other witnesses say I was knocked unconscious back at the first van and that I wasn't there' (when the deceased was killed.) (iii) 'What about what I said to the police in the first place, I was really drunk, then knocked out and I don't remember doing anything like this.' (iv) 'If I knew/remembered doing this, I would have pleaded guilty from the start but as far as I know or remember I didn't do it.' (v) 'Well if I've got no chance I might as well plead guilty.' (vi) 'I would like more time to think about it.'" 25 The affidavit filed by the appellant himself broadly conforms with that evidence so far as he states that his Counsel and solicitor talked to him about the likelihood of the success of his trial, in the course of which he was told that he would be found guilty. He went on to say that his Counsel said that, "The jury would believe my brother John Wilkes, and if I were to plead guilty, I would be looking at a couple of years less." 26 He went on to say that, "My barrister said that after what had happened in court there was no effective way to cross-examine John Wilkes after what the jury had seen as my brother had been very obviously distressed in the witness-box." 27 In consequence of that advice, the appellant said, "I felt that I didn't have a chance if I kept on running my trial and I felt that I was backed into a corner trying to defend myself against the witnesses. I considered my position and decided that I would be better to plead guilty to murder and take a lesser sentence. 28 Counsel suggested that the discussions in the first conference focused upon the issue of identification of the appellant as the person wielding the paling that was used to batter the deceased to death. The potential issues of provocation or intoxication were not, according to him, raised at that stage or, if they were raised, then they were dealt with only in passing. 29 In the second conference, however, Counsel said that those issues were expressly raised and dismissed. The conversation in relation to provocation was confined to the observation by Counsel that: "There is no evidence of the effect it had on you". 30 The possibility of provocation which Counsel seems to have later considered open was, no doubt, related to the alleged presentation by the deceased of a knife during the course of an argument or scuffle in the caravan amongst the various persons present, including the appellant. 31 The conversation in relation to intoxication Counsel said was limited to the advice, "White juries will never let an Aboriginal accused off because they were drunk in my experience." 32 Counsel said that he also advised the appellant that there was a difficulty, if not an impossibility, in the defence switching from one dependent on the issue of identification to some other, more limited defence. 33 At no time, he said, did he advise the appellant about the necessity of his Honour giving a warning to the jury in the course of the summing-up pursuant to section 165 of the Evidence Act, presumably concerning the possible unreliability of the evidence concerning identification, or of that coming from a person or persons who may have been criminally involved in the events. 34 He said, additionally, that he did not advise the appellant about the possibility of a verdict of manslaughter being returned in lieu of a conviction for murder. Nor did he discuss with the appellant possible avenues of cross-examination of John Wilkes, or of his friend Scott Payne who had provided a statement, and who allegedly had been seen at one point to be pursuing the deceased. In that regard I observe that there was material apparently available to the Crown, as disclosed in the affidavits placed before us, to suggest that two persons were seen pursuing the deceased prior to his death. 35 In his second affidavit, Counsel said that upon reflection, he had become concerned that he had not given the appellant any real choice as to whether he should plead or not, and that the appellant had not given him any instructions acknowledging that he had committed the offence. Moreover, it had occurred to him that there were a number of matters that he could have put to John Wilkes in cross-examination, including the fact of his prior inconsistent statement to the police, the presence of a cut to his hand inflicted by the deceased, as well as the presence of other marks or injuries on his body and of blood on his T-shirt. He added that there was also an opportunity, which he now saw, for cross-examining the various civilian eyewitnesses, some of whose recollections may have been affected by the alcohol that they, and others present at the caravan park, appear to have been consuming that day. 36 Similarly, he said that there was room to cross-examine the caravan park proprietor, Peter Slappendel, as to his ability to identify the attacker, as the appellant, from the distance that he was from the scene of the killing; and concerning an inconsistency between the description he gave of the attacker's clothing and that given by other witnesses. The identification of the appellant by Mr Slappendel's wife, Counsel suggested, was also open to question in the light of the appellant's claim not to have known her previously. 37 Next Counsel said the observations attributed to the appellant by police and the ambulance officers called to the scene, concerning the injuries he had suffered to his arms, ribs and nose, and that were relied upon as admissions were open to question as possibly having been related, not to the killing, but to the earlier altercation in the caravan, in the course of which the appellant claimed that he had been threatened with a knife. 38 Finally, he said that there was room to cross-examine the officer in charge of the case as to why there had been no testing of the blood found on the shirt of John Wilkes, or of the clothing worn by Scott Payne for comparison with the blood of the deceased; or any statement taken from Robert Wilkes who had also been at the scene and who, it was suggested, at some stage had been engaged in a fight with John Wilkes. 39 It is evident from the terms of the exchange deposed to by Counsel that the appellant did not acknowledge his guilt and, if anything, was protesting his innocence. The clear inferences that he was suggesting were that it may well have been his brother John Wilkes and Mr Payne who had been responsible for the killing, that they could be putting their heads together to attribute the blame to him; and/or if he had been involved in the killing, then he did not have any memory of it, due to the effects of the alcohol that he had consumed that day. In that latter regard, we have today been informed that there is evidence from the hospital records, supported by answers given in the ERISP, to the effect that the appellant was significantly affected by alcohol by the time that he was seen at the hospital. 40 Although no evidence was given by the appellant to us expressly asserting his innocence, the inference to be drawn from the entirety of the evidence before us is that the plea of guilty was entered solely because of the advice which he had received as to the likely outcome of the trial. That advice, as I have observed, Counsel now regards as having been incorrect and imprudent. Moreover, if the facts are as have been stated, then it must be accepted that the plea was not one attributable to a genuine consciousness of guilt. 41 So far as any question exists as to whether there is a genuine question as to the appellant's guilt, that question needs to be considered in the context of the evidence that had been given, before the change of plea, by the four witnesses out of the thirty witnesses that the Crown had expected to call in the trial. 42 This evidence had revealed that DNA testing of the appellant's clothing had not shown up any blood consistent with that of the deceased; that DNA testing of the murder weapon was inconclusive; that photographs taken of the appellant's hand had not shown any injury to it; and that the two eyewitnesses Grahame Clenton and Karen Ridgeway who had been called were not able positively to identify the appellant as the man responsible for the killing. The former because his vision from the caravan had been limited, and the latter because, although she knew Payne and John Wilkes, she did not know the appellant. It may be observed that those witnesses did refer to the assailant as a big man, which would be consistent with the appearance of the appellant, and inconsistent with that of John Wilkes and Payne. However, it is not open to us to take that matter further in the absence of a full appreciation of the available evidence. 43 The existence or otherwise of a real question as to the appellant's guilt turns additionally upon what it was that the other witnesses may have been expected to say. In this regard we have received only a portion of the Crown brief. Of the various statements placed into evidence before us, it does appear that Mark Doyle would say that he saw the deceased pull out a knife at one stage of the afternoon when confronting the appellant. Dean Rutledge says, in his statement, that he had seen some injuries to the head and face of Scott Payne, and that he had also seen marks like blood on John Wilkes' T-shirt after the killing. Finally, it may be noted that amongst the various statements placed before us there was one from Ambulance Officer Clement. In that statement he noted that a person with whom he spoke at the scene, whom it would seem was the appellant, had said that the deceased, whom he had hit with his hand, had threatened his family. 44 In all of the circumstances outlined, we are not in a position to determine the manner in which the balance of the evidence would have emerged and, in particular, how Mr John Wilkes and Mr Payne would have fared under cross-examination. Nor are we able to predict what evidence might have emerged as to the quantity of alcohol consumed by the appellant on the day of the killing, or as to its effect upon him, so far as that may have been relevant for an offence requiring specific intent, as the present case required. 45 The limited material available does, however, leave it possible to say that the identification evidence could have been tested in the way that Counsel has now identified, that an issue could have arisen as to whether either or both John Wilkes and Payne had been involved either as principals in the first or second degree in the killing; and in so far as the evidence might have implicated the appellant as the offender, rather than those men, that a question could have arisen as to whether he acted under provocation, or in an alcohol affected state such that he lacked the requisite state of mind. 46 While the Crown case may, on one view, appear on the limited material provided to us, relatively strong, it cannot be said at this stage that questions of the kind mentioned could not genuinely arise which should be determined by a jury. 47 This court should, in my view, be reluctant to dismiss the confession by an experienced public defender that he made a mistake in his assessment of the merits of the case and in the advice given. In particular, I would not be prepared to do that by reference to what could only be a partial consideration of the prosecution brief, that is without the benefit of it being tested by examination and cross-examination, a matter which is properly reserved to a jury and which is simply not available to us. 48 In all those circumstances, not withstanding the respect which needs to be given to the finality of verdicts in criminal trials, a circumstance requiring very great diligence on the part of trial counsel, when advising as to the wisdom of entering a plea, I have reached the conclusion that this appeal should be allowed and the conviction set aside. I would order a new trial. 49 I would only wish to add that it was in the very best traditions of the bar for counsel to have taken the step that he did, to correct what he saw to be a serious error on his part, affecting the liberty of his client, and to frankly acknowledge that failing in the affidavits placed before us. 50 It should also be said that it was regrettable for advice to have been given, and a decision taken of such importance, in haste and without proper reflection since little was to be lost, in pragmatic terms, concerning the timing of the plea. The proper course, with hindsight, would have been to reserve any decision about a change of plea overnight, by which time a better appreciation may have been possible concerning the likely credibility of John Wilkes and Mr Payne, and during which time the appellant could have had the opportunity of considering his position without being distracted by the immediate pressures of a hearing that was about to resume. 51 I mention these matters not by way of criticism of trial Counsel, but to underline for the future the care needed when occasion arises for a possible change of plea mid trial. Not only should Counsel take the time needed for proper reflection, but so should they be allowed the opportunity if time is sought. 52 GILES J: For the reasons given by Wood CJ at CL I agree that the conviction should be set aside and that there should be a new trial. 53 SIMPSON J: I also agree. 54 GILES J: Those will be the orders. Mr Game, I note that Mr Wilkes has had bail consistently refused. Any intentions in that regard I think should be raised before a single judge if it is to be raised at all. ----- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.