New South Wales Supreme Court CITATION : REGINA v. LULHAM [2000] NSWSC 687 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70200 of 1999 HEARING DATE(S) : 25/2/00; 3/3/00; 17/3/00; 28/4/00; 12/5/00; 16/6/00; 17/7/00 JUDGMENT DATE : 17 July 2000 PARTIES : REGINA v. LULHAM, Dean Richard JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: P. Barnett Offender: B. Murphy SOLICITORS : Crown: S.E. O'Connor Offender: Mark Klees Associates CATCHWORDS : Criminal law - plea of guilty - application to withdraw - distinction between matters constituting offence and matters going to culpability - no factors vitiating plea. Liberti (1991) 55 ALR 120 CASES CITED : Davies (CCA, unreported 16 December 1993) Ganderton (CCA, unreported 17 September 1998) Chiron (1980) 1 NSWLR 218 DECISION : Application to withdraw plea of guilty dismissed IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70200 of 1999 GREG JAMES, J. MONDAY 17 JULY 2000 REGINA v. DEAN RICHARD LULHAM JUDGMENT (On application to change plea of guilty) 1 HIS HONOUR: The offender, Dean Richard Lulham, appeared before me for trial on one count that on 12 November 1998 at Beechwood in the State of New South Wales he did murder Robert Christopher Spradbrow. An arraignment was held on 2 September 1999 at Sydney in this court. At that time a plea of not guilty was indicated. 2 The offender had been committed for trial with DT, and at that time another person had also been charged. 3 Subsequently to the committal for trial, DT, who had earlier given a record of interview to the police, on the advice of his solicitors furnished another record of interview in which he inculpated this offender. 4 The present offender had on 13 November 1998 given to the police a record of interview. In that interview it is now said that he sought to protect DT. In any event it was that interview which put the police on the scent of arresting DT. He had the following day himself been arrested and given the police a second interview. In that interview he had referred to the earlier interview with police and lies that he had told the police earlier. 5 This offender told the police on the second interview, about how he and DT had considerable animosity to the deceased and that when they had been at the riverside, having been drinking too much, this offender went out to the farm at which he was employed and got a gun, allegedly to shoot mullet; that the gun was with him when he went to the island even before the deceased had gone there, and that he had used it for shooting mullet. 6 He confirmed that as he had told the police earlier, he had spoken to the deceased and had "put a treaty on". He told the police he had made good friends with the deceased and wanted "peace between them". 7 However, after he had spoken to the deceased he and DT, who had been back at the car, went home, had a few beers, spoke to other persons and then went back out to the island. 8 The following appears in that recorded interview:- "Q.107. And what did you go back out there for? A. [DT] went to shoot the fucking dark cunt. Q.108. And what, how did this come about, tell, like, you're there -? A. [DT] wanted to shoot him, I was fucking lost it mate, I just started the car, I didn't know he was gunna shoot him or fucking what he was gunna do. Q.109. Well --- A. I thought he was just going over to bloody give him a good talking to. I didn't even know he had the fucking rifle or otherwise I would have took it off him. And that's the God honest bloody truth. I don't want to be charged with anything, Jesus. Q.110. Well -- A. I try me best in life. Q.111. Alright. I'm not saying you don't, but what I need to know from you is the truth. A. Yeah, that is the truth. Q.112. Alright. You've said just a moment ago that [DT], we went back there cause [DT] was gunna shoot him. Now that to me indicates that he said something to you at the house for you to go back there. A. No, [DT] didn't say he was gunna shoot him, right, he said he was going out to talk to him. Q.113. Righto. So --- A. Give it to him. I don't know what --- Q.114. Alright. So what happened then, the three of you get back into the Range Rover which belongs to your boss? A. Mm. Me and the other bloke were drinking. Q.115. Who was driving? A. --- we were, I was. Q.116. Alright. And what happened? A. I don't know what happened. I don't know who took the gun out of the car or bloody what happened. I didn't, I would have stopped trouble, I went over and stopped the trouble before, I made a treaty with him. Q.117. Yeah. A. Made friends with him, I didn't want anybody shot or harmed. --- I didn't want to see anybody dead and I didn't want to see anybody harmed." 9 On 19 August 1999, DT pleaded guilty before me. The statement of facts tendered on that plea was incorporated to a substantial extent in a summary of facts that appears at paragraphs 19 to 28 of my remarks on sentence in relation to DT. 10 It was common ground in these proceedings that I might have regard to what I had said in that judgment. In that judgment I have set out how that offender came forward to give evidence against this offender and his production to the authorities of a signed confession sent to him whilst he was in gaol by this offender. I had noted in those remarks on sentence the plea by this offender to murder on the basis of being an accessory before the fact to a killing by DT at the time at which I delivered those remarks on sentence. 11 That plea was entered before me on 24 August 1999, at the Newcastle Supreme Court. By that time the offender's mother and the third person who had been referred to in the statement of facts and the record of interview, had also pleaded guilty to offences involved in the activities of the various parties surrounding the death of the deceased. It was subsequent to the plea by this offender and the ordering of a pre-sentence report that the remarks on sentence were delivered. 12 On 7 December 1999 proceedings commenced on the plea by this offender. On that day the offender was convicted. The arresting police officer and DT gave evidence. 13 On 25 February 2000, the counsel who had appeared to that point for the offender, sought leave to withdraw. That leave was granted. The application was made in contemplation that there might be an application to withdraw the plea of guilty. 14 On 3 March 2000, another legal practitioner appeared on behalf of the accused and sought, successfully, an adjournment, to consider the question of whether the application for leave to withdraw the plea of guilty might be made. 15 On 17 March 2000, the defence indicated that it was sought to vacate the plea and legal professional privilege was waived in order to enable the proceedings on that application to proceed. Directions were given for affidavits to be prepared and filed. Those affidavits were in due course forthcoming. When on 16 June the affidavits had been provided, a further adjournment was granted to enable the applicant to receive advice and consider what evidentiary course he might wish to take. 16 In these proceedings it was agreed that I was to have regard to the affidavits of the applicant sworn 28 April 2000 and two affidavits sworn 14 July 2000. The applicant gave additional oral evidence in chief which without objection merely comprised his assertion that he was not guilty. He was cross-examined and particularly cross-examined on the issue of whether or not he had instructed his counsel of the course he wished to take in the light of the evidence of the elements of the offence. He was questioned on the consistency of his instructions concerning threats he claimed he had heard of to his mother by persons connected to a third person. A statutory declaration concerning the involvement of the third person, or more correctly, that person's non-involvement in the events was presented. 17 Evidence was given by affidavit by both the original instructing solicitor and original counsel. Counsel was cross-examined. At no time was any issue raised to suggest any lack of credibility in counsel; nor was any assertion adverse in any way made in respect of that counsel's performance by his client, other than as put, almost by implication, that he failed to obtain instructions with sufficient clarity of analysis as to the legal elements and factual elements so as to record precisely the basis on which the plea was entered. 18 In evidence reference was made to written instructions provided by the applicant to his lawyers. Those written instructions have not been tendered before me. The oral evidence of the applicant's counsel and the affidavit evidence of that counsel and the solicitor clearly establish that the applicant was advised of the serious nature of entering a plea of guilty to murder, and that the applicant was advised of the relevant elements, even if not advised of those with the utmost clarity and precision. 19 But more importantly, that evidence discloses clearly that at a time subsequent to the providing of those answers to those questions in the record of interview, which I have already set out, and at a time at which I raised with counsel in the presence of the applicant particular concerns that it be understood that the plea was an admission of the relevant circumstances such as would found the offence, it became clear that the applicant was continuing to assert that he was guilty of the offence. 20 The Crown had provided a statement of nine points, under the heading of "Crown assertions of fact". As to those points, on 7 December 1999 there was a dialogue between defence counsel and myself and the issue of whether or not those points were contested was examined. It was accepted by those parties that a concrete purpose to kill the deceased had crystallised after the offender and DT had been at their home and returned to the island. It was accepted that the first record of interview provided to the police by DT was correct, that the gun was provided by this applicant to DT, who exited the car, went down to the riverbank, shot the deceased and came back. 21 It was accepted that the Crown assertions were factually correct except that it was put that this offender would say he was reckless as to what DT was going to do, although he accepted that there was a real possibility that if the deceased was there DT would kill him. It was denied that the offender agreed with the purpose of killing as opposed to being reckless as to whether it might occur. 22 At that point I raised with counsel the necessity for there to be a clear understanding of the legal basis of accessoryship upon which the plea was entered, and counsel said, "there was an understanding the man would be killed if he was there". I said, "that is not reckless (sic). Your client was present and entered into that agreement or arrangement that the deceased would be killed?". Counsel, "yes". 23 Counsel informed me that his client had entered into that agreement when he drove DT out to the island, that DT's first record of interview was a correct version of what had occurred and counsel drew my attention to questions 107 and thereafter in that record of interview. I was told that the answer to question 108 was correct. This raised the same issue of ambiguity again. 24 I said, "That is plainly in the teeth of the plea of guilty.". Counsel said, "That is what he said to the police. What he says to me is he accepts if there was a real possibility that he was there he was going to kill him.". 25 In further discussion counsel posed the relevant test to be whether his client had agreed by his behaviour to kill the deceased and accepted that he should be sentenced on the basis that he agreed the deceased would be killed, and reached that agreement when DT left the car with the gun. 26 At that point I put to counsel that it follows that I could not accept the proposition that the offender did not know at that point that the killing was going to happen and the discussion concluded that I could sentence the accused upon the basis that it was accepted that an agreement was reached that the deceased would be killed at the time at which the offenders returned to the island. During all of this, the offender was present and had the opportunity to give instructions. 27 The evidence of Detective Lysaught, the arresting officer, was then given. There was some further discussion which explored the defence contention that I would not accept the Crown evidence that it was this offender who encouraged DT to kill or who first proposed that the killing should occur. At that point it was made perfectly clear that there were only two accounts available of what had happened at the island, and only one account available which would provide direct evidence of what was in this offender's mind, that is his own account. 28 Thereafter DT gave evidence and was cross-examined extensively. During that cross-examination I was informed by counsel for the offender that it was accepted that this offender had provided the gun, provided the ammunition and consented to the purpose, and said some things which might have been taken by DT as encouragement, but which were not intended by this applicant to be encouragement. 29 Again it was put that it was accepted that in providing him with the gun, provided for the purpose of killing, that must of its very nature have been an encouragement of him to kill. A factual dispute as to whether the deceased was killed following DT going down initially to examine the site at which the deceased lay asleep and returning to the vehicle to get the gun and going down again, was outlined. 30 But that is a matter which would really only need to be resolved in the context of a dispute of facts on a plea of guilty. It is not a matter which relates to the issue of whether or not this offender's plea might be set aside. 31 It was in the context of that debate, as I have set it out, that the application was made to withdraw the plea. The basis on which that application was made was set out in a written document provided to me. The application was on the basis that there was undue influence or pressure put on the accused to change his plea from not guilty to guilty, and it was because he was under undue influence and pressure that the accused's will was not independent and voluntary because it was overborne; he was unable to make a worthwhile judgment as to what was in his best interests and there was an arguable issue in that the brother's evidence might not be accepted by the jury. 32 In the debate before me, however, today, the issues have been put somewhat differently. It has been put that in the questions and answers to which I have referred in the record of interview a real issue arises as to the mental state of the accused at the time, that is to say whether he possessed the relevant intentional state at the relevant time for him to be guilty of murder. 33 I have been referred to those passages of the transcript in which it is said counsel has telegraphed the ambiguity, vagueness or inadequacy of instructions to support the plea of guilty to murder which his client had entered. I have also been referred to the cross-examination of DT and in particular certain questions put in cross-examination which seem to indicate an inability to appreciate what should be put on instructions if the instructions were such as to have shown a relevant mental state such as to constitute guilt. 34 I have for the moment refrained from referring to this offender's confession, which was provided by DT in his evidence on his plea, since that confession, it appears, adds little on this application, it being the contention of both the Crown and the defence that the accused has on a number of occasions in that confession, and in the first record of interview, lied substantially. 35 I have put aside the detail contained in Exhibit A, which was provided on the plea, and which includes the statement of facts of 7 December 1999, since at the time at which the accused sought to withdraw the plea it had not come to any further challenge than the cross-examination of Detective Lysaught and DT, to which I have referred. 36 The affidavits of counsel and the instructing solicitor in detail refer to the conferences and advice on the plea. Counsel gives evidence that on 20 August 1999, which was a date the Friday before the plea was entered on the Tuesday, there were discussions as to the possibility of a plea of guilty and a lesser sentence. Counsel gives evidence that he advised the accused to the effect that a plea of guilty accepted all the elements of the offence and that the accused should think it over, but that if there were to be a plea, written instructions were necessary. 37 Counsel denies the lack of proper advice and is supported in that regard by the affidavit of the instructing solicitor, which it was not sought to challenge in cross-examination. He says, "On many occasions he was told by me that he should not plead guilty out of confusion or a sense of hopelessness or out of some misplaced loyalty to [DT]". 38 Advice, he says, was given to his client and on his instructions that if he knew that if the deceased was at the island when he drove DT out there and made the gun available and that DT would kill the deceased, he would be regarded in law as an accessory before the fact to murder. Counsel also gave evidence of advice on the strength of the Crown case including the fact that DT, the offender's mother and friend, as well as certain other persons who were present at critical moments during the night, would give evidence against him. He referred to the deferral of the proceedings to enable his client to discuss the matter with the solicitor and his advice that if he were in any doubt, to plead not guilty. 39 In his affidavit he refers to a conversation of 24 February 2000 in which the offender said:- "I think he wanted me to do it when I'm drunk. I'm capable of anything when I'm drunk. I'm responsible for giving him the gun in the first place. The only reason I feel responsible is because I gave him the gun. I shouldn't be beaten for someone else's fucking mistake. I've told you the truth before and it's working against me." 40 He continues that he was told by his client, after discussing the previous instructions:- "Yeah, well I've thought about it. I want to see [DT] on the stand. I want to plead not guilty." 41 Both counsel and the solicitor deny that they had placed any inappropriate pressure on the offender to plead guilty. Both agreed, however, that in the offender's mind quite clearly was the prospect of a reduced sentence in the context of an overwhelming Crown case against him. In his own affidavits the applicant accepts that neither counsel nor solicitor exerted direct pressure on him to plead guilty, but he felt a great deal of pressure from the prospect of losing a discount on sentence. 42 It is difficult in the light of that material in the affidavits of 14 July to know quite how one can regard what he said in his affidavit of 28 April 2000 concerning counsel reducing him to tears, and for the next hour or so putting enormous pressure on him to change his plea from not guilty to guilty. It is noted that in that affidavit only limited issue is taken with the accounts given by DT to the police. 43 Before me it has been submitted that I should have regard on such an application as this to the cautionary words referred to by Kirby, P. in Regina v. Liberti (1991) 55 ALR 120 at 122, as to the circumspection with which a trial court should approach an application to withdraw a plea, and as to the reluctance with which an appellate court would disturb a plea. 44 I have been referred to the decision of the Court of Criminal Appeal in Regina v. Davies (unreported 16 December 1993). I have drawn counsel's attention to the decision in Regina v. Ganderton (CCA, unreported 17 September 1998), reviewing many of the authorities in respect of appeals against conviction where there has been a plea of guilty below and subsequent withdrawal of a plea. 45 Whilst it is the case that the position is not entirely the same in respect of an appeal from a conviction entered after plea, nonetheless there are very similar issues raised when a trial judge comes to consider the withdrawal of a plea of guilty. Plainly if the maintenance of the plea was such as might work a miscarriage, it could not be allowed to stand. The court will go behind a guilty plea and hear an appeal against conviction where a miscarriage may have occurred, and similarly a trial judge would be astute not to maintain a conviction on a plea of guilty where any arguable question of the accused's guilt remains. 46 In that regard, if the plea itself is impugned by some circumstance showing that the accused's will has been overborne, so that he was not admitting his guilt and an arguable question remains of that guilt, I have no doubt that a court would overturn the plea: Davies (supra) per Badgery-Parker at pp.11-16. If the accused was admitting something he did not know or had not done for the sake of some benefit having been improperly extended to him, that would clearly be a sufficient circumstance in my view to found an application for the plea to be overturned. 47 But on an application of this kind the applicant bears the onus of showing that the plea should be withdrawn. In that regard, he must show such matter as I have referred to. If he did not know the nature of the charge or failed to appreciate whether the circumstances might or might not make out his guilt, where the plea has been induced by threats or certain kinds of mistake, or a deficiency of evidence such that it would not have been open to the jury to convict him, all of these and more would constitute adequate bases for overturning the plea, and reversing the conviction. 48 But more is necessary, as the authorities show, than a mere change of mind to overturn an admission of this, the most formal kind, to such a serious offence, particularly where that admission has been provided to the court after advice from counsel whose competence and independence are unchallenged, and who has proffered that advice in the light of all parties being aware of those matters debated in court and those questions and answers to which I have referred in the record of interview: Regina v. Chiron (1980) 1 NSWLR 218. That plea is an admission that at the time of the commission of the acts constituting the offence this accused had the relevant state of mind sufficient to make out that element of the offence. In the event that it was to be contended that this accused did not have the relevant state of mind, one would have expected some evidence with some degree of particularity on that issue. 49 These proceedings have been adjourned time and again to permit the accused to take advice and to give evidence and to take issue with the relevant portions of the Crown case. He simply has again chosen not to. 50 There may have been some degree of vagueness in disposition and inconsistencies in his attitude from time to time, but it is not the law that because a person who has pleaded guilty seeks to assert matters later to minimise his culpability, which are asserted then to be inconsistent with the plea, that thereby the plea must be vacated. Nor is it the law that because an accused person contemplates he might obtain some benefit which the law confers, such as a discount for a plea of guilty on sentence, that they can refer to that matter as creating an unacceptable pressure and thereby impugning the plea. 51 The authorities clearly establish that there must be something that vitiates the effect of the plea as an admission of the relevant circumstances, there must be something which taints the proceedings. It may well be that if there were evidence that the accused did not have the relevant or a relevant intention, other questions might have arisen, but there is nothing in the material before me coming from the source from which one would expect there to be evidence if the accused were not guilty, that he did not have the relevant mental state such as to propound an arguable question. 52 That means, of course, in the context of this matter there is no such matter as goes to show that the plea did not represent, when it was made a genuine expression of consciousness of guilt of the offence charged. All the material from counsel and the solicitor indicates that the plea was such an expression and that the accused had possession of the relevant facts and the relevant awareness, if not precise awareness, of the nature of the charge. 53 It is not necessary in order for the plea to stand that the precise moment of awareness of the fact that killing would occur be established, provided that moment coincides with this offender offering assistance or encouragement to the killer. 54 What appears to be in issue is when that assistance or encouragement occurred. What appears to be in issue is whether this accused was the prime mover or DT, the principal in the first degree. Notwithstanding the care and skill with which his present counsel and solicitor have approached this application, notwithstanding the various adjournments in which opportunity has been afforded to put forward any bases upon which the plea might not stand, in my view nothing has been put forward such as to impugn the integrity of the plea, taint the proceedings, raise an arguable issue for trial or call into doubt that the plea should not be maintained. 55 I therefore dismiss the application. Last Modified: 09/26/2000 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.