Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Khamis v R [2014] NSWCCA 152 Hearing dates: 25/07/2014 Decision date: 15 August 2014 Before: Hoeben CJ at CL at [1] McCallum J at [88] Garling J at [89] Decision: Application for an extension of time within which to seek leave to appeal is refused. Catchwords: CRIMINAL LAW - practice and procedure - application for an extension of time within which to appeal - applicant seeking leave to withdraw plea of guilty - applicant pleaded guilty to one count of sexual intercourse without consent - whether applicant understood effect of plea of guilty - whether applicant suffering from a schizophrenic episode when he entered plea of guilty - limitations of medical evidence - importance of evidence of events contemporaneous with entry of plea of guilty - unreliability of applicant as an historian - complete and logical explanation for plea of guilty available - no reasonable prospects of success - application for extension of time refused. Legislation Cited: Crimes Act 1900 - s 61I Criminal Appeal Act 1912 - s10(1)(b) Cases Cited: Abdul v R [2013] NSWCCA 247 Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 Khamis v Regina [2010] NSWCCA 179 R v Stephen J Ray (No 2) [2005] NSWCCA 380 Regina v Van [2002] NSWCCA 148; 129 A Crim R 229 Sabapathy v R [2008] NSWCCA 82 Wong v The Director of Public Prosecutions (2005)155 A Crim R 37 Category: Principal judgment Parties: Omer Ibrahim Khamis - Applicant Regina - Respondent Crown Representation: Counsel: J Trevallion - Applicant N Williams - Respondent Crown Solicitors: Archbold Legal - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2008/6846 Decision under appeal Date of Decision: 2010-11-09 00:00:00 Before: Blanch J CJDC File Number(s): 2008/6846 Judgment 1HOEBEN CJ at CL: Nature of Application On 9 November 2010 the applicant pleaded guilty to one count of sexual intercourse without consent pursuant to s 61I Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment. On that occasion the applicant was sentenced to a period of imprisonment of 3 years, with a non-parole period of 1 year and 11 months. The applicant had previously served this time in prison and was on bail after a successful appeal to the Court of Criminal Appeal. Accordingly, he was released to parole on the day of the sentence. 2The applicant relies upon the following ground of appeal. 1. The applicant's plea of guilty is not attributable to a genuine consciousness of guilt and was entered without a full understanding by the applicant of the implications and consequences of his doing so. 3The applicant seeks the following orders: (i) that an extension of time be granted within which to apply for leave to appeal. (ii) That leave to appeal be granted. (iii) That leave to adduce new evidence be granted. (iv) That the applicant be allowed to withdraw his plea of guilty. Factual background 4The offence, which forms the basis of the matter before the Court, occurred on 28 October 2007. The applicant was arrested on that date and was charged the following day. He was released on bail and remained on bail until he was convicted on 9 October 2008. 5The prosecution case can be summarised as follows. The complainant, who was 16 at the time, lived with her family on a property in the western suburbs of Sydney. They were of Sudanese origin. The complainant had arrived in Australia in 2006 with her mother and siblings. These included her older brother, Kamal, who played something of a parental role towards his younger sister. The applicant, who was aged 31, became a friend of the complainant's family through community connections and ultimately formed a friendship with the complainant and Kamal. Sometimes he would have a meal with her family and sometimes he would stay overnight. 6On Saturday, 27 October 2007 the complainant was at home with her mother, her two brothers and a young lady who was in a relationship with Kamal. Her name was Angelina. Early the next morning at about 5am, the applicant called the complainant on her mobile phone. He said that he had finished work and he asked her to open the front door of the house. The applicant was let into the house by the complainant and after that, she went back to her bedroom and fell asleep. 7Some time later, the complainant woke up to find the applicant lying on her and kissing her. Her under garments had been removed and the applicant was trying to (and did) put his penis into her vagina. She tried to call for help and pushed the applicant away. He left the room and the complainant then went back to sleep. When she woke, she went to the bathroom and saw what appeared to be semen in her underpants, as well as in her vagina. 8The complainant went immediately to her brother's room and spoke to Angelina about what had happened. There was an agreement between the two young women that Angelina should tell Kamal what had happened. After that occurred, Kamal spoke to the complainant about the incident. 9Shortly afterwards Kamal initially, and later others, confronted the applicant in the younger brother's room where he had been asleep. The applicant denied that he had done anything wrong but Kamal persisted. He threatened that he would get a knife. The applicant then admitted that he had been in the complainant's room but said that he would marry her. 10The defence case was that the applicant had entered the complainant's bedroom and spoke of marriage. The complainant was pleased with the prospect and that it was the complainant who initiated intimate contact. The complainant touched his penis until he ejaculated, but there was no penetration and whatever occurred, it occurred consensually. It was his case that the complainant's family sought to extract money from him but that when he refused, the police were contacted. He denied admitting to Kamal or the family that he wished to "correct the wrong" that he had done by offering to marry the complainant. ERISP 11Following his arrest, the applicant participated in an ERISP, dated 28 October 2007. In the ERISP the applicant was assisted by a support person from the Sudanese community, but did not have an interpreter. The applicant indicated that he understood that he did not have to participate in the ERISP unless he wished to and that he had not been threatened, or offered any inducement, to participate. 12Relevant parts of the ERISP are: "Q158 So when you got there about 6.10 this morning, did you use this mobile to ring S? A Yes. Q159 - to open the front door for you? A Yes. Q160 And did you ring her mobile? A Yeah. Yeah, I for her mobile. Q161 Can you tell me what happened after she answered the front door? Just tell me everything that happened after that. A I tell her, you know. Like, just, I reach now and, Are you still awake, up? And she said, Yes, and I'm coming, you know, like, to open the door for you. I get down from the car she come and open the door. And, you know, like, I am in the main door and, you know, like, going in, and she opened the, the house door and just, she go back. And after, you know, yes, I coming, and I get in, I, you know, I found her mum, she's sleeping in, you know, like, outside, in the house, and Kamal and, with his girlfriend, you know, like, they sleep in the room. And there is Azadeen he's sleeping, you know, like, in room by himself, and S she sleeping, you know, like, in room by herself too. And, you know, like, he left the door open, you know, like, just I come and I went immediately for her room, you know, because, you know, like, I been told her I going to come and talk to you. And he said, Yeah, it's OK, no problem. ... Q175 You followed her into the bedroom? A Yeah. Q176 Who closed the door? A Me. Q177 The front door? A Yeah, front door. And the room, she sleep on it, yeah, she's leave, like, leave it open, you know. Q178 So when you went into the bedroom, did you leave the door open, or close it? When you went into S's bedroom, did you open the door or close, leave the door open or close it? A When I went over there, you know, like, I think, I'm not sure, you know, like, not quite sure on this one. Q179 Can you tell me what happened in the bedroom, in S's bedroom? A Yeah, what, what happened over there. And just when I went over there, he said to me you know, like, you can sit, and I sit in her bed. And just, you know, like, we start, you know, like, talking, and because, you know, like, just, you know, I am really tired when I come in the morning, and when we start talking, you know, like, I said to her, you know, like, I can lie in your bed. He said, you know, like, Why not, you can lie. And just, I lie, you know, like, closer to her and, you know, like, we start talking. And I said to him, I said to her, you know, like, I want to you know the Come and marry you, if like, you agree with that, and something like that. She was, you know, like, not answering you know, like very you know, like, when I ask her, in the time of the answer. And because we been, like, so closer, she was, you know, like, facing me, she want to know, like, take, you know, like, kiss from me, and something like that. And after, you know, like, I also, you know, like, I tried to give it to her, you know, like, again, like, when he was you know, like, facing me. And after, you know, like, we been hugging each other, she was, you know, like, very interesting, you know, because that what, you know, like, I was been thinking, she was want to, you know, like, we have sex and something like that. But, you know, like, I didn't putting, you know, like, anything you know, like, about that in my mind, yeah, just, you know, like, couple of, you know, like, kissing and hugging. After, I don't know exactly, and when I stop, I just, you know, like, for a while, after a while, she said to me, you know, like, Get out of my room, and I said to her, Why? And she didn't answer to me. And just, I went out. ... Q199 While S was with you, did she take any clothes off? A Yeah. She trying, you know, like, when we was, you know, like, kissing and something like that, she trying, you know, like to take, you know, like, her pants you know, like out because, you know, like, yeah, she was thinking, you know, like, we would have sex or something like that, you know. But it doesn't happen, that one, you know. Like kissing and, you know, like, hugging, yeah. And after just, you know, like, when I stopped, just he said to me, you know, like, Get out from my room, and you are so aggressive, you know. I don't know because, you know, like, I said, you know, like, I was thinking maybe, you know, like, I been touchin' her, like, one, kissing and hugging, I been touching her, like, her body or something like that, and maybe I don't know. Maybe she was thinking, you know, like, maybe just, maybe find something wrong, you know, like, for me, and he don't want to do, you know, like, something, and maybe he going to tell my family, something like that. I don't know. Yeah. Q200 How many times did you kiss S? A For a period, you know, like, about 2 minutes we been kissing, you know, together, 2 minutes and a half, something like that. Q201 And did she try to pull away or resist you? A No. Q202 Did you tongue kiss? A Yes. ... Q205 Did you touch her on the vagina? A I not quite know But I was, been thinking, you know, like, when I touching, you know, like, by my hand, no, I don't know, you know, but, you know, like, I was thinking, maybe I was being, like', when I touching her, I touch her, you know, like, down or something like that. And because for some reason she was, you know, like, talking different, you know, like when something like that, you know, 'cause in our culture, you know, like, if the, the lady, you know, like, is not, you know, like, virgin, the people over there, you know, like, they saying this lady, you know, maybe she no good or something like that, you know. Yeah, I don't know. But, you know, like, I was thinking, we kissing and hugging and I touch, her you know, like, by my hand, her body. Maybe I touch her over there, and that what she was thinking because, and he saw me, you know, like, I didn't want to do anything, she was so aggressive, you know, like, Get out from my room and after, you know, like, I been, in, like, asleep, and I don't know 1.30 or something like that. And after, you know, when she came and I, when she wake up, and you know, like my room and, yeah, and touch me or something like that, you know. Q206 I've been informed that you put your erect penis in S's vagina for a short time. What can you tell me about that? A No." 13In answer to Q213 the applicant said on three occasions that nothing happened between him and the complainant ... "Q220 Did you tell Kamal you had sex with S? A No, no, because I, we didn't having any sex, I know. Q221 Did you tell Kamal that you tried to have sex with S? A No. I told her, you know, like, yeah, I want to, while we talk, whilst talking, you know, like, together, we're talking together, you know, like, yeah, she starting, you know, like, get up closer to me for kissing, and just we been kissing each other and hugging, yeah. But we didn't, you know, like, do anything you know? Q222 How long were you in the room with S for? A Yeah. About, you know, like, 2, 2 and a half, something like that, minute. That's it, you know. Q223 Right. Did S consent to you, did S tell you it was OK to do anything sexual with her? A She didn't tell, but she didn't tell me, you know, like, with her mouth, you know, like that, but, you know, we been, you know, like, together and, you know, like, just we been kissing and hugging, that's it." The first trial 14The applicant was first brought to trial on this charge on 29 September 2008 in the District Court of New South Wales at Penrith before Murrell DCJ SC and a jury of twelve. The trial lasted 8 days with the applicant being convicted on 9 October 2008 and taken into custody on that date. 15The applicant gave evidence at trial with the assistance of an interpreter. Relevant evidence was as follows: "Q. And did something happen then? A. INTERPRETER: We were kissing and then we reached the state that it was hot kisses. She had in mind maybe we have intercourse, sexual intercourse, I don't know and I just found her, she's getting her hand and playing around my genital and I was so panic because I haven't done sexual intercourse before. That's why I ejaculated straight away because it was the first time for me to experience this. ... Q. You mentioned that she was doing something with your genitals, can you tell us what that was? A. INTERPRETER: She held my genital and she was doing that until I ejaculated." (7.10.08 - T.308.27 - .33, .44 - .47) "Q. And did you ejaculate on the bed? A. INTERPRETER: Yeah because we were not doing sex actually so half of it it was on my pants, sorry my underwear and the other half it was on the bed." (7.10.08 - T.309.40) "Q. And what happened next? A. INTERPRETER: When I found myself ejaculated she was still trying to continue on kissing and then I said to her, "That's enough." because anyway I'm coming tired, I want to go onto sleep." (7.10.08 - T.310.20) ""Q. On Sunday did you agree that Kamal accused you of having sex with S? A. INTERPRETER: Kamal was threatening me to write down that I had sex with S. Q. Kamal accused you of having sex with S, he said to you "Why did you do this to my sister or why did you have sex with my sister?" or some words like that. He accused you of having sex with his sister? A. INTERPRETER: According to the language I understand Kamal was threatening me to write the paper that I had sex with S. Q. And was he also saying to you "Write the truth on the paper"? A. INTERPRETER: After i wrote the truth he said to me "This is not the truth". Q. So do you agree that he was saying to you "The truth is you had sex with S and that's what I want you to write"? A. INTERPRETER: He was asking me to write down, because he wanted me to pay some money and to be responsible for S for two years." (7.10.08 - T.337.14 - .32) Q. Then she was - you were wearing your under shorts, she started playing with your genitals? A. INTERPRETER: Yes. Q. She was pulling on your penis until you ejaculated? A. INTERPRETER: Yes. Q. Then she wanted to continue but you said "That's enough I'm tired."? A. INTERPRETER: Yes. Q. She continued kissing you after you ejaculated? A. INTERPRETER: After I ejaculated I told her "That's enough I am tired, I want to go and sleep." and then I just left. Q. Well when you said she wanted to continue then did she say something or do something that made you give that evidence? A. INTERPRETER: She asked me to stay. Q. But you said I'm tired I'm going to sleep elsewhere? A. INTERPRETER: Yes. Q. And that's what happened, is it? A. INTERPRETER: Yes. Q. You'd agree that that story is not at all the same story that you told the police about what happened in the bedroom? A. INTERPRETER: Where are we? ... Q. Okay. Do you agree with me that the story that you just told in court before the jury is very different from the story that you told police? A. INTERPRETER: How would you expect me to talk to the police, I was in shock ..." (7.10.08 - T.339.35 - 340.13, T.340.44 - .47) "Q. So I'm going to ask you about some parts of that interview. Do you agree that you told police that what happened between you and S in the bedroom was only kissing and hugging? A. INTERPRETER: I was not able to explain that because of the language. The other thing it was a shame like to talk about her like she was playing in my genital until I ejaculated. I thought like no need to talk about these embarrassing things. Q. So you agree that you didn't tell the police anything at all about S touching your penis? A. INTERPRETER: Because there was no interpreter I was not able to convey that. Q. That's the reason that you didn't tell them? A. INTERPRETER: Yeah that was - that was the main reason. The other thing because the whole thing is embarrassing and it's a shame. I don't want to talk about it because otherwise Kamal would have hurted his sister." (7.10.08 - T.341.15 - .31) 16At the trial, Dr David Bruce, senior forensic biologist at the Division of Analytical Laboratories (DAL) gave expert evidence in relation to a DNA certificate. He explained that DNA testing was carried out on the seminal stain on a bedsheet and the DNA recovered was overwhelmingly likely to be that of the applicant. Dr Bruce carried out screening tests for semen in relation to the high vaginal swab, the low vaginal swab and the vulval swab with a positive result for semen. Dr Bruce agreed that if there were penetration but no ejaculation there could still be seminal fluid in the vagina if the ejaculation took place outside the vagina; with penetration there could be pre-ejaculatory fluid present in the vagina. Dr Bruce was not able to extract a DNA profile from this pre-ejaculatory fluid on the tests available to him at that stage. 17Following the applicant's conviction, a Probation and Parole Service pre-sentence report was obtained dated 29 January 2009. Under the heading "Attitude to the Offence" the following was recorded: "Mr Khamis disagrees with the Police facts and the finding by the jury with respect to their assignment of guilt in relation to these charges. The offender denied sexual intercourse occurring on the offence night, as well as emphasising his perception of consent in the kissing acts by the victim. Mr Khamis portrayed himself as the victim of a conspiracy of the alleged victim's family aimed at "bringing him down", due to his known success of assimilation into the Australian culture. The offender appeared to rationalise his conspiracy theory by drawing on cultural and tribal feuds of his native country often tangently diverting the direction of the interview and focus away from answering direct closed questions." 18The Justice Health records note a consultation which the applicant had with a psychiatrist, Dr Elliot, on 12 November 2009. He told Dr Elliot that he was worried about his appeal and felt that his lawyer was ignoring him. There was a further entry in the Justice Health records for 28 August 2010: "He was seen after he had come back from court. Court was adjourned. He said he was hoping to get bail and reported that his solicitor was arranging for a psychiatric report for court. He had a blunted affect, fixed eye contact, monosyllabic responses and paucity of speech. He felt stressed and continued to hear voices and believed that people were after him. He denied command hallucinations." Successful appeal and retrial ordered 19The applicant appealed against his conviction in the Court of Criminal Appeal (Khamis v Regina [2010] NSWCCA 179). The appeal was successful on the basis of a denial of procedural fairness. The trial judge had rejected evidence from the applicant on the basis that the matters raised in this evidence had not been put to key Crown witnesses. The Court of Criminal Appeal held that the correct procedure should have been to admit the evidence, but recall the Crown witnesses so that those matters could be put to them. 20Significantly, during submissions to the Court during the hearing of the appeal counsel then appearing for the applicant said: "The accused said he went back to the bedroom with the complainant and there was physical contact between the two kissing and hugging and sexual intimacy but there was no penetration; he has always maintained that there was no penetration." (CCA transcript 21.7.10 - p3, line 4) 21The Court of Criminal Appeal handed down its decision on 19 August 2010. The applicant was released to bail shortly thereafter, having served a period of imprisonment of 1 year and 11 months. Retrial 22On 8 November 2010 the applicant's matter was listed for retrial at the Sydney District Court. The applicant was represented by Ms Kathy Hunter, solicitor, and Mr Paul Johnson of counsel. The Crown indicated that while the matter was ready for trial, there was an "outstanding DNA testing issue" and he asked that the matter be stood over until the following day. That course was not opposed by the defence. 23On the morning of 9 November 2010, the Crown indicated to the court that "this will be a short matter as a result of the new DNA material that was received late yesterday. My friend needs a little more time to confer with his client. But I think that's definitely the direction we're heading this morning." 24There is a dispute as to what happened in discussions between the applicant and his legal advisers at that time. I will deal with that issue in due course. 25Agreed Facts were placed before the judge, Blanch J, and the applicant was thereupon arraigned on one count of sexual intercourse without consent, to which he pleaded guilty. Defence counsel indicated to the court that it would be convenient if the matter proceeded to sentence straight away. He outlined the previous history of conviction, sentence, time served and that the Crown was not seeking that the applicant serve any more time. The Crown tendered the previous remarks on sentence, criminal history, victim impact statement and the pre-sentence report. 26Defence counsel tendered a letter from the applicant's treating doctor, Dr Bashar Mahmood, which indicated that the applicant was "now being treated for schizophrenia". This letter was dated 3 November 2010. The letter stated that the applicant was suffering from "thought disorders and auditory hallucinations and preliminary diagnosis of schizophrenia made. He commenced treatment two months ago and awaiting response and adjusting dose currently to reach to optimum dose". Defence counsel made no submissions in relation to this report. 27The Crown submitted that the period which the applicant had spent in custody was sufficient punishment for the offence and Blanch J accepted that submission. Blanch J sentenced the applicant to imprisonment with a non-parole period of 1 year and 11 months and a balance of term of 1 year and 1 month. The sentence was to date from 10 December 2008. His Honour then ordered the immediate release to parole of the applicant. Discussions between the applicant and his legal advisors on 9 November 2010. 28The applicant swore an affidavit in these proceedings on 13 January 2014. In that affidavit, he deposed as follows: "3 I suffered persecution and violence at the hands of security officers [in Sudan]. 4. I escaped Sudan in about 2000 and travelled to Egypt for protection. 5. While in Egypt I was diagnosed with schizophrenia. I did not get any treatment at that time. 6. In about 2004 I migrated to Australia as a refugee. ... 10. In 2008 I went to court. I was represented by a solicitor and barrister from Legal Aid. They were both women. I do not remember their names. 11. At the end of the case the jury said I was guilty. I was sent to gaol. 12. I remember I spent some time in gaol before I was sentenced. I don't remember how long the Judge sentenced me for. 13. At that time I was not totally aware of what was going on. 14. I know that I appealed the case to the Court of Criminal Appeal. My lawyers did everything for me. ... 16. In about 2010 my appeal was successful and the matter was re-listed for trial at the Sydney District Court. 17. I was represented again by Legal Aid. I've been told by my current lawyer and agree that Legal Aid appointed Catherine Hunter to be my solicitor, Scott Corish was my barrister. 18. I remember meeting with Ms Hunter and Mr Corish in an office in Goulburn Street Sydney about a week before my trial was to start. 19. At the meeting I remember we discussed my case. I explained to Ms Hunter and Mr Corish about my condition and gave my instructions in the case. I believed my girlfriend had consented to the sexual intercourse. We had had sex on previous occasions. 20. I next met with Ms Hunter and Mr Corish at court. We had a meeting in a private room for about 10 minutes. 21. During the meeting Mr Corish said words to me to the effect "This is a very good judge. I advise you to plead guilty and you will go home today." 22. I gave instructions to plead guilty and on 9 November 2010 I was sentenced by Judge Blanch. 23. At the time I entered the plea of guilty I did not understand that pleading guilty meant that I was admitting to commission of the offence. 24. I always believed that my girlfriend had consented to have sex with me. 25. At the time I entered the plea of guilty I was taking Seroquel. I was very confused and was "out of my head". 26. I did not understand what was going on. 27. After court I was let out of gaol. 28. I was put with Probation and Parole. I remember speaking to somewhere there and saying "Why am I here?" I was told "Your name is on the computer. You have committed a crime. You are a criminal. We have to supervise you." 29. I was upset when I heard this. I did not believe I was a criminal. 30. After meeting with Probation and Parole, I remember speaking to a few friends who explained to me that if I had sex with my girlfriend without her consent, then I was guilty. They explained to me that if I had sex with my girlfriend with her consent, then I was not guilty. 31. This was the first time I understood what being "guilty" meant." (It was common ground that the applicant's barrister was Mr Johnson not Mr Corish.) 29The applicant was cross-examined by the Crown on his affidavit in these proceedings. He was asked to explain inconsistencies between what he said in his affidavit and what he had told the police in his ERISP and the evidence he had given in his first trial. With the aid of an interpreter, he said that what was stated in his affidavit was correct. His explanation for inconsistencies with earlier statements was that he did not have an interpreter, he did not remember what was said, and that he was "out of my head". When asked questions about whether he understood what he was doing when he gave instructions to plead guilty on 9 October 2010 he said that he was "out of his head". 30In this appeal the applicant relied upon new evidence being two reports of a psychiatrist, Dr Adams, dated 12 September 2013 and 24 July 2014 and a report from a psychologist, Mr Nielsen, dated 11 October 2012. The Crown did not object to that new evidence, provided it was limited to establishing the ground of appeal. 31Dr Adams in the report of 12 September 2013, recorded what the applicant told him of his understanding of the legal proceedings with which he had been involved. "I attempted to explore Mr Kharmis' understanding of the legal proceeding following the initial charge. He stated "I lost my memory after 2007, my memory's been affected severely after 2007" and he frequently referred to his inability to recall the exact details. He recalled initially pleading not guilty and being found guilty at trial. I asked him about the initial appeal to which he responded "I don't know what happened at that time". He commented "People asked me to appeal against the decision ... say you guilty and you will go home ... my memory was 100 percent destroyed". With regards the appeal process Mr Kharmis commented "I only understood that I would be free to go home ... he [referring to his legal representation at this time] didn't explain to me what would happen if I pleaded guilty. Even if he did, I didn't understand because of my memory ..."." (Report p5) 32In response to the report from Dr Adams, the Crown had the applicant seen by Dr Allnutt. Dr Allnutt interviewed the applicant on 1 June, 3 July and 13 July 2014 and provided a report dated 16 July 2014. An interpreter was present at all of the interviews. Dr Allnutt recorded that the applicant told him the following: "In the time leading up to 9 November 2010 he had been locked up in gaol and he lost his memory, meaning he felt "comatose and unconscious". He had problems with concentration and memory he said and he was not sure what was going on. He took five kinds of medication in gaol; he was not sure of their names. He saw mental health professionals but was not sure if they were psychologists or psychiatrists. He saw a lot of them. On 9 November 2010 he was living in a boarding house in Redfern. He had been released from gaol two weeks prior. He woke up and went to court that morning in Liverpool Street. He met with his lawyers and a colleague in front of the court. They took him to some chairs and he sat with the lawyer and a colleague. At the time they seemed to be in a hurry. They told him that the judge was a good man and if he wanted to go home, he must say that he was guilty. He then went with them up some stairs to the court. The lawyer spoke to the judge and the solicitor then asked him to say 'guilty'. He recalled he was not in the dock. The solicitor told him to say 'guilty' and he said this. He said it because the solicitor had told him if he said this word in front of the judge, there would be "no problem" and nothing would happen after this. He could not recall the judges being read out, but he did recall the solicitor speaking to the judge and saying that he had schizophrenia. After he'd pleaded, he went home. He recalled at that stage feeling as if he was in a coma and unconscious. When I inquired about his understanding of the reason he went to court he stated he had gone to court that day because he had been asked to come by the solicitor over the phone. At the time he said he had a "feeling" that someone was planning to put him in trouble and that this was "the girl" (S). He said that at the time he did not know why he was going to court but he knew there were allegations that he had had sex with this girl. When I inquired whether or not there was an interpreter at the time he spoke to his lawyers on 9 November 2010, he said there was no interpreter and they spoke to him in English and that there was no interpreter in court." 33On 9 October 2010 a Statement of Agreed Facts was placed before Blanch J. That document was signed by the applicant and was also signed by a Sudanese interpreter who endorsed the document as follows: "Has been read to Mr Khamis". Included in the Statement of Facts was the following: "11 The matter came for trial at Penrith District Court in September 2008. The offender gave evidence at trial. He asserted that he and the complainant were effectively engaged and that he had gone to her room that morning with her agreement to discuss their impending marriage. He said that there was sexual conduct between them initiated by the complainant. He said that she rubbed his penis until he ejaculated but there was no intercourse. He asserted that the family wished to obtain money from him and when he refused to agree to this, they contacted the police ... 13 Additional testing using the Y-filer System was completed by DAL in November of this year. This testing showed that the Y-filer profile recovered from the high vaginal, low vaginal and vulval swabs of the victim matched the Y-filed profile of the offender with the result that the offender could not be excluded as the source of the male DNA on these swabs." 34Affidavits were filed on behalf of the Crown. Victoria Engel was a solicitor in the employ of the ODPP and had the carriage of the prosecution of the applicant. She was able to refresh her memory by accessing electronic file notes and email correspondence kept by the ODPP. 35In her affidavit she described how on 3 November 2010 she contacted Dr Bruce from DAL and arranged for him to carry out the more advanced Y-filer testing of the vaginal swabs taken from the complainant. When she received those results, she sent an email to the applicant's counsel, Mr Johnson, advising him of the test results which were as set out in the statement of facts above. Subsequently, there was a discussion between counsel for the Crown (Mr Bowers) and Mr Johnson, during which the updated DNA test results from DAL were provided to Mr Johnson. It was the recollection of Ms Engel that the statement of facts handed up in court was signed by the applicant. 36Mr Johnson affirmed an affidavit on 1 July 2014. It was necessary for him to rely upon his memory because he no longer possessed a copy of his brief or any notes relating to the matter. He spoke to Ms Hunter, his instructing solicitor, in order to refresh his memory. Mr Johnson was able to say: "5 I do recall attending the Downing Centre District Court to appear for Mr Khamis. I recall that a supplementary report from the Department of Analytical Laboratories was served very late (by the date of Mr Bruce's report of 8 November 2010 and the FAX transmission time of 1600 shown on it, it must have been either late on the Monday or early Tuesday the 9th that it was served on the defence by the Crown). 6 I do not recall Mr Khamis's specific instructions to me as to the allegations he faced (i.e. whether he was denying intercourse took place (as he did in the first trial) or whether he was saying consensual intercourse took place (as he asserts he told us in his affidavit). I do recall that having received the additional DNA report the matter was stood in the list in the morning (which must have been on Tuesday the 9th) so that its contents could be discussed with Mr Khamis. I believe an interpreter was also present. I do recall that before Ms Hunter and I had this conference at court with Mr Khamis the Crown had advised me (whether by phone or in person I cannot recall) that if Mr Khamis pleaded guilty to the charge, the Crown would not submit that he needed to serve any additional gaol time. 7 I vaguely recall having a conference in a conference room at the Downing Centre. Although I cannot recall what conversation then occurred with Mr Khamis, I believe he was advised of this new evidence. It is also my belief that the new evidence did not assist his case and that was why the matter was stood in the list. (While I do not recall what his instructions were for his second trial, assuming (as he asserts) that "consensual intercourse" were his instructions, the new DNA report - confirming for the first time the presence of male DNA and which, using the Y-filer System matched Mr Khamis and hence did not exclude him as the source of the male DNA - would have assumed no importance whatsoever to his case as he was now running it). If I did advise him to plead guilty, I can only believe I did so in the light of the new DNA report not assisting his case at trial. I do recall he was advised as to the Crown's attitude on sentence if he pleaded guilty and I do agree that I advised him to the effect that if he pleaded guilty before Blanch CJ with the Crown's concession as to time served, that he would in all probability not serve any additional time in custody. I further believe Ms Hunter obtained signed instructions from Mr Khamis that he would plead to the offence. I can't recall how long the conference lasted. 8 I cannot recall anything else about the conference at which he gave signed instructions to plead guilty. 9. I note Mr Khamis states in his affidavit that he was suffering from a mental illness and was "out of my head" when he pleaded guilty. I have been asked by the Crown to comment on my experience with clients who have a mental illness and my ability to understand their instructions. Over my 25 years of practice I have had innumerable clients with mental health issues to varying degrees. I do endeavour to ensure that all my clients understand what I am saying to them that they understand the consequences of their instructions/decisions and that I understand their instructions. In relation to Mr Khamis I have no specific recollection of his demeanour of that day." 37Ms Hunter, the applicant's solicitor, affirmed an affidavit on 3 June 2014. She said that she had been unable to find her file and could not discount the possibility that it had been destroyed. She had a recollection that there was new DNA evidence but she could not recall its significance. 38She said: "4 Mr Paul Johnson and I met with the applicant in conference prior to the trial date and on the day of trial. I have no recollection of the demeanour of the applicant being unusual. I recall that an interpreter was used during conferences. 5. I do recall that both Mr Johnson and I advised the applicant that if he was convicted after trial, he would in all likelihood be returned to custody. I recall that there was a concession by the Crown prior to the trial commencing that were a plea of guilty to be entered to the charge of sexual intercourse without consent that the applicant had served sufficient time in custody. 6 On the day that the matter was listed for trial Mr Johnson and I conferred with the applicant in the court precincts. Whilst I have not had access to the legal file in the matter, it is my usual practice to obtain written instructions at the time of entering a plea of guilty which acknowledges advice given and received." Medical reports Dr Adams, 12 September 2013 39In reaching his conclusions, Dr Adams relied upon his own observations and examination of the applicant, the history given to him by the applicant and medical reports from other doctors who had treated the applicant, including the records of Justice Health while the applicant was in custody. Based on that material, Dr Adams diagnosed the applicant as suffering from paranoid schizophrenia at the time when he was examined. In answer to specific questions, Dr Adams said that the applicant was suffering from psychotic symptoms between mid 2009 and August 2010 when he was released from custody. He noted that Dr Khan, psychiatrist, deemed him to be suffering from psychotic symptoms in January 2011. Dr Adams concluded that it was reasonably likely that the applicant continued to experience symptoms of psychosis between August 2010 and January 2011. 40In relation to medication, Dr Adams concluded that it was possible that the applicant was compliant with anti-psychotic medication on or about 9 November 2010 but he was not able to confirm this. 41At the conclusion of the report, Dr Adams answered a specific question as to the applicant's mental health on 9 November 2010 as follows: "4. Based upon the preceding answers, in your opinion, if our client was suffering from a mental illness on or about 9 November 2010, could that illness have had any impact on our client's ability to properly receive legal advice and give instructions to his legal practitioners? As discussed above, in my view it is reasonably likely that Mr Khamis continued to experience symptoms of paranoid schizophrenia on or about 9 November 2010. Unfortunately, as discussed above there is no collateral information currently available pertaining to Mr Khamis' exact mental state at this time or his capacity to properly receive legal advice and provide instructions to his legal practitioners. Broadly speaking, people suffering psychotic symptoms such as Mr Khamis, in the form of delusions and hallucinations, might suffer a reduced capacity to adequately receive legal advice and provide appropriate instructions. I am unable to provide any definitive comment, however, as to whether this was the case for Mr Khamis' case on or about 9 November 2010." 42Mr Nielsen, psychologist, provided a report dated 11 October 2012. In that report he said that the applicant had undertaken counselling from 3 April 2008 until October 2008 and from 14 January 2011 up to the date of the report. The purpose of the consultations was to enable the applicant to learn coping mechanisms for his paranoid schizophrenia, being a diagnosis made by Dr Khan, his treating psychiatrist. 43Mr Nielsen said that culturally the applicant had found it extremely difficult to adjust to Australian culture and that as of the date of the report was taking 900mg Seroquel (an anti-psychotic medication) and 15 mg of Avanza (an anti depressant medication) on a daily basis. Mr Nielsen said "It is my opinion that Mr Khamis' condition of paranoid schizophrenia impacted his cognitive processes". It was agreed by counsel for the applicant that such an opinion was outside the expertise of Mr Nielsen and should be ignored. Dr Allnutt 44The opinion of Dr Allnutt, in his report of 16 July 2014 was based on three consultations with the applicant together with an examination of medical reports from treating doctors, including the records of Justice Health. 45In the third consultation of 13 July 2014, the applicant told Dr Allnutt on a number of occasions that when he went to the court on 9 November 2010, he did not understand what the word "guilty" meant and did not understand the implications of pleading guilty. Dr Allnutt recorded the following exchange: "At this stage of the interview I asked him what he understood by the term not guilty and he. said, "Now I know the word means you are a criminal". I put to him, "Does not guilty mean you did it or you didn't do it?" and he said, "I don't know". ... I asked him what the word guilty meant and he said, "You need to explain to me what does this word mean"." (Report p 8) 46Dr Allnutt made the following observations in relation to the applicant: "The defendant in my view appeared to be evasive when answering certain questions but this was difficult to determine because of the language barrier. He seemed at times not to answer the question put to him and it needed to be put to him repeatedly. His affect was flat." (p 13) "Given his history and the numerous opinions of a variety of experienced clinicians I would agree that he has schizophrenia. However, at the time I saw the defendant I thought the manner in which he reported his symptoms to me was atypical in a number of ways. Reporting auditory hallucinations as unilateral, such as occurring predominantly on one side rather than in stereo is unusual. His visual hallucinations, were atypical, in that he described them being generally black, white and red (visual hallucinations are normally full colour), being of miniature and giant sizes (visual hallucinations are generally of a normal size), with a bizarre appearance (the quality of visual hallucinations is normally more realistic) and presenting as talking figures (this is relatively uncommon). Further, his descriptions of referential thoughts on the TV, that is that the figures he visualised "jumped" in the TV banging sticks and jumping around (referential thoughts generally relate to media communicating to the patient or about the patient). He reported significant periods of memory loss, such as his recollection of the trial and his incarceration. I find this to be unlikely even in a person who was experiencing active symptoms of schizophrenia at those times. At times I thought he was evasive and reluctant to engage in discussion of his legal experiences. He did not perform well on testing of Presser Criteria when I saw him, in particular his misunderstanding of the term Not Guilty, which I found surprising given that by the time he saw me, he had gone through a trial and launched an appeal (there are references in his file of his awareness of the appeal while in prison and concern that his lawyer was not paying enough attention to him). Thus I have concern that at least at the time that he saw me, there was some embellishment of psychotic symptoms, exaggeration of memory disturbance and amotivation to engage in discussion of court processes when he saw me. On the other hand the interview was difficult and slow, he seemed have difficulty with the chronology of events. This could have been due to active symptoms of mental illness and an example of his communication problems. It was difficult to assess his flow of thought due to the language barrier (notably however Dr Adams did not note thought disorder when he spoke to him in English) and regard needs to be given to potential confounding by cultural factors. The interview was shortened when he suggested the interpreter of misinterpreting saying that something was telling him this. Embellishment does not rule out mental illness. If he is embellishing, this could be motivated by a need to exaggerate in order to be believed, in a situation where he might perceive others as doubting him." (Report, pp 14-15) 47In relation to the medication he was taking, Dr Allnutt said: "According to his self-report he was taking the medication Seroquel. But the details of this remain unclear to me. Seroquel can affect a person's cognitive ability but only at very high doses, which does not appear to be the case here. I note that in his report dated 28 January 2011, Dr Khan noted he was taking Seroquel 300 mg daily for the prior 6 months - this would be insufficient to cause cognitive impairment due to medication. However, I would regard such a dose as possibly sub-therapeutic and thus not necessarily sufficient to treat his symptoms." (Report, p 15) "On 9 November 2010, to enter a plea, he essentially required capacity to instruct his legal representatives on the nature of his plea. To do this, he would have at least needed to know the nature of the charges, the purpose of the hearing, know that his lawyers represented him, that the prosecution put the case against him, the judge made the determination and sentenced him, be able to understand the meaning of the terms guilty and not guilty, the consequences, and be able to communicate his choice of plea to his legal representatives. ... His legal representative gave an affidavit that they did not observe unusual behaviour around 9 November 2010, in the context of the hearing and his plea of guilty. I assume that they would have engaged him in a discussion in this regard and felt satisfied with the quality of his instructions. ... Given he had gone through a trial, been imprisoned, pursued and appeal and attended court with an expectation, I believe that he likely had capacity to know the nature of the charges. I also believe it likely that he had capacity to know the role of the judge (his lawyers told him this was a reasonable judge and my impression was that he understood the judge determined the consequence). Given he was consulting lawyers he likely understood their role as his legal representatives and thus had capacity to understand the roles of legal professionals (the judge and his lawyers) and on this basis probably had capacity to know the role of the prosecution. This also suggests he knew the purpose of the hearing. His legal representatives appear to have been satisfied with his instruction to plead guilty. At the least it appears he understood that if he pleaded guilty he would "go home". That is that the plea would result in a consequence that was to some degree favourable (that is, not gaol but home). This suggests capacity to understand a consequence arising from a plea. I am however unable to be definitive about his understanding of the plea itself, that is that it was an admission of doing the offence. But given he had been through a trial had appealed his conviction and had previously made a plea; it seems unlikely that he would not have known the meaning of the term guilty. He seems to have understood that the judge was regarded as sympathetic to his case and if he pleads guilty he would go home. This suggests understanding that it was worth taking the risk and making a plea with potential negative consequence but in this case positive (going home). He communicated his choice at the time of the hearing on November 2010 and thus had capacity to communicate a plea. However that he reports surprise at being a "criminal" after the plea also suggests that he might have expected to be found to have not committed and offence and this would support the view that he did not understand the plea at the material time. But in this he demonstrates an understanding of conviction as opposed to acquittal. It also possible that he was not expecting further criminal justice involvement if he pleaded guilty, and that he was surprised, when after being told he could "go home" if he pleaded guilty (demonstrating a capacity to understand consequence), he still had criminal justice obligations and thus has pursued his current course. That he was unaware of the potential consequences does not necessarily equate to incapacity to receive legal advice at the material time but is consistent with a misunderstanding of the outcome possibly due to poor communication. Despite the difficulties in determining the issue in this case my preference would be to fall, on the side of fitness to plead on 9 November 2010 based on current information - that is, he had capacity." Dr Adams - Report 24 July 2014 48The report of Dr Allnutt was sent to Dr Adams who upon receipt, prepared a supplementary psychiatric report. Dr Adams said: "· I was not concerned at the time of my assessment about the possibility of symptom embellishment. · I do not concur with Dr Allnutt's conclusion, "Despite the difficulties in determining the issue in this case my preference would be to fall, on the side of fitness to plead on 9 November 2010 based on current information - that is, he had capacity." Following on from the above point, in my view there are too many unknown factors surrounding Mr Khamis' presentation on or about 9 November 2010 to offer a reliable and valid opinion from a psychiatric perspective regarding Mr Khamis' fitness or capacity to plead. The significant unknown factors include, but are not limited to: The exact detail of Mr Khamis' symptoms of psychosis; the potential impact of Mr Khamis' symptoms of psychosis upon his thought processes and cognitive capacity; and the issues of language, communication, and cultural understanding. These unknown variables in my opinion prevent clinically reliable inferences regarding Mr Khamis' capacity to engage with his legal representatives, given the series of assumptions that must be made to compensate for them. ... In my opinion it is possible that Mr Khamis' legal representatives may not have been aware that he was suffering from symptoms of schizophrenia in the process of giving legal advice and receiving instructions. Symptoms of mental illness are not always overt. There are several reasons for this, which differ case by case. One reason for them remaining undetected is if specific probing questions are not asked. For example, when I initially briefly met with Mr Khamis on 17 July 2013 we discussed the benefits of an interpreter and postponing the assessment. I did not explore specific aspects of his mental state during this brief meeting and I did not elicit any features to suggest he was suffering symptoms of psychosis. This contrasted with my findings during my more comprehensive examination with an interpreter. I am not aware if Mr Khamis' legal representatives asked specific questions to explore his mental state on or about 9 November 2010. Correspondingly, on the basis of the information currently available, in my opinion it is also possible that Mr Khamis' legal representatives may not have been aware that his capacity to comprehend any advice given may have been affected. In my opinion this remains a possibility in light of the unknown factors discussed above, and the absence of any contemporaneous documentation surrounding Mr Khamis' mental state, cognitive capacity, comprehension, and retention of information on or about 9 November 2010." Application for extension of time within which to apply for leave to appeal. 49The applicant acknowledged that 3 years and 8 months have now passed since he pleaded guilty in the District Court and was sentenced by Blanch J. He sought to explain that delay on the basis that he did not know that any Appeal or Notice of Intention to Appeal against Conviction was required to be lodged within 28 days of his sentence being imposed. The applicant submitted that he did not become aware of the consequences of his plea of guilty until some time after his plea of guilty. He submitted that this ignorance is partly explained by his mental state during the period. 50The applicant submitted that many of the reasons for the delay were beyond his control. An important part of his application for leave to appeal was the availability of medical evidence to support his contention that he has been suffering from a mental illness for a long time. He submitted that this difficulty was exacerbated by the need to obtain funding from time to time from Legal Aid in order to retain a psychiatrist to provide a report to support his claim. In that regard, the applicant relied upon the affidavit of Emad Younan, sworn 28 October 2013. 51Mr Younan deposed that legal aid to obtain a merit advice was granted on 21 June 2011. A Notice of Intention to Appeal was filed on 3 August 2011 but subsequently rejected because an extension of time was needed. An Application for Extension of Time was refused by the court on 19 October 2011. Between 19 October 2011 and March 2012 documents relating to the applicant's case and what happened on 9 November 2010 were obtained. 52On 27 April and 10 July 2012 counsel for the applicant provided advice to the solicitors concerning the collection of evidence. Thereafter, a considerable time was spent in collecting or attempting to collect evidence in support of the applicant's appeal. Further delays were caused by the need to apply to Legal Aid from time to time for further funds. Counsel provided a final merit advice on 26 September 2013. The Notice of Application for Extension of Time or Notice of Application for Leave to Appeal was filed on 6 February 2014. Consideration 53Apart from the considerable amount of time which elapsed between 9 November 2010 and when the applicant first consulted solicitors, this matter has proceeded at what could only be described as a steady, rather than quick pace. In making that observation, I am not being critical of either counsel or the solicitors for the applicant. In some cases the delay was beyond the control of the applicant's legal advisors, particularly where extra grants of Legal Aid had to be obtained or where recipients of correspondence did not respond or provide requested documents or information. That having been said, the fact remains that 3 years and 8 months have passed since the applicant's plea of guilty and conviction. Moreover, almost 7 years have now passed since the date of the offence. The importance of appeals being dealt with promptly has been repeatedly emphasised by this Court. 54In Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 this Court (McClellan CJ at CL; James and Johnson JJ) said in relation to an application under s10(1)(b) of the Criminal Appeal Act 1912 for an extension of time to appeal against conviction: "38 There is a clear public interest in the avoidance of delay in bringing appeals to this Court against conviction and sentence. The time limit for the bringing of an appeal to this Court under the Criminal Appeal Act 1912 reflects the principle of finality in litigation: R v Unger [1977] 2 NSWLR 990 at 995-996; R v Gregory at [39]-[41]. There is provision for extension of time to appeal and this power should be exercised with the interests of justice in mind, given the usual consequences of conviction following trial on indictment. However, the longer time passes without an appeal being filed, the more solid ought be the expectation of the community, witnesses, victims and the families of victims that the criminal proceedings are over. This is a significant consideration to be taken into account on a leave application. Should an appeal against conviction succeed and a retrial is ordered, witnesses will be required to testify once again, with the further passage of time resulting from a delayed appeal having the potential to affect detrimentally the administration of justice. 39 This Court has recently refused an extension of time to appeal against conviction for murder because of the absence of any satisfactory explanation for the delay and the lack of merit in the proposed grounds of appeal: McCall v R [2010] NSWCCA 174. When considering the interests of justice in relation to an application for leave to appeal, regard should be had to the interests of the Crown (representing the community) and the administration of justice generally, as well as the interests of the applicant for leave: R v Gregory at [41]; McCall v R at [6]." 55Similar sentiments were expressed in Abdul v R [2013] NSWCCA 247 by the Court (Hoeben CJ at CL, Johnson and Bellew JJ) at [31] - [53]. The Court summed up its conclusions at [53] as follows: "53 ... all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time." 56In this case, apart from there being some justification in the reasons for delay, and leaving aside for the moment whether substantial injustice would result, all of the other considerations identified in Abdul point strongly towards a refusal of the application for an extension of time within which to bring an appeal. Accordingly, this leaves for consideration the question of whether, if an extension of time were refused, substantial injustice would result. It is that question to which I now turn. Legal principles in relation to a conviction appeal after a plea of guilty 57It was common ground that the relevant principles were set out in Regina v Van [2002] NSWCCA 148; 129 A Crim R 229 by Greg James J (with whom Hodgson JA and Kirby J agreed) where his Honour said: "48 What is necessary to be shown before an appeal might be successful from a conviction entered up as a consequence of a plea of guilty, has been variously expressed. See Regina v Boag (1994) 73 A Crim R 35; Regina v Meissner (1995) 184 CLR 132; 80 A Crim R 308; Regina v Maxwell (1995) 184 CLR 501; 87 A Crim R 180; Regina v Ross (NSWCCA, unreported 20 February 1994); Regina v Liberti (1991) 55 A Crim R 120 and the cases referred to by Spigelman CJ in Regina v Houra [2001] NSWCCA 61; 121 A Crim R 472 at 477-478 [32] - [33]. The principles have been conveniently summarised in the applicant's submissions taken from Houra (supra) as follows:- "· Where the appellant "did not appreciate the nature of the charge to which the plea was entered" (Regina v Ferrer-Esis (1991) 55 A Crim R 231 at 233). · Where the plea was not "a free and voluntary confession" (Regina v Chiron (1980) 1 NSWLR 218 at 220 D-E). · The "plea was not really attributable to a genuine consciousness of guilt" (Regina v Murphy [1965] VR 187 at 191). · Where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt" (Regina v Sagiv (1986) 22 A Crim R 73 at 80). · Where the "plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt" (Regina v Concotta (NSWCCA, 1 November 1995, unreported)). · The "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt" (Maxwell v The Queen (supra) at 511). · If "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt" (Regina v Davies (NSWCCA, 16 December 1993, unreported)). See also Regina v Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v Favero [1999] NSWCCA 320." 49 To the cases cited should be added reference to Regina v Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; Regina v Wilkes [2001] NSWCCA 97; 122 A Crim R 310 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; Regina v McLean [2001] NSWCCA 58; 121 A Crim R 484 in which senior counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of injustice; Regina v KCH [2001] NSWCCA 273; 124 A Crim R 233 involving improper pressure by counsel and Regina v Becheru [2001] NSWCCA 102 and Regina v Toro-Martinez (2000) 114 A Crim R 533. 50 In Liberti (supra) at 122, Kirby P referred to the court's approach to a proposed change of plea or to an asserted want of understanding of what was involved in a plea of guilty as with "caution bordering on circumspection", since such a plea in law is an admission of all the legal ingredients of the offence and is the most cogent admission of guilt that can be made: see Lee J in Sagiv (supra). In Meissner (supra) Brennan, Toohey and McHugh, JJ said at 141; 313: "A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if the court does act on such a plea, even if the person entering it is not indeed guilty of the offence."" 58Howie J considered the issue in Wong v The Director of Public Prosecutions (2005)155 A Crim R 37 at [33] where his Honour said: "33 A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant's own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea "is not in truth guilty of the offence": Meissner (at 141; 313). Justice Dawson stated the following (at 157; 326-327) (footnotes omitted): "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 worry, 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." ... 36 If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant's own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty: Sewell (at [34]). 37 But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it." 59What emerges from those statements of principle is that any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea. Ordinarily, this task is not an investigation of the applicant's guilt or innocence, rather it is an examination of the integrity of the plea of guilty itself (R v Stephen J Ray (No 2) [2005] NSWCCA 380 at [20]; Sabapathy v R [2008] NSWCCA 82). The onus lies upon the applicant to demonstrate that leave should be granted. Applicant's submissions 60The applicant submitted that he had always maintained his innocence in respect of the offence and that he did not understand that by pleading guilty he was admitting that he committed the offence. The applicant submitted that he did not understand the implications that would flow from a plea of guilty, such as his name being placed on the computer data base as a sex offender. The applicant accepted that if his primary consideration at the time the plea was entered was that a plea of guilty would almost certainly remove any possibility that he would be returned to custody, and if he then understood the consequences of such a plea, he would be bound by it. The applicant submitted, however, that he did not have such an understanding. 61In order to make out that argument, the applicant relied on his own testimony that he was "off his head" at the relevant time, was suffering from memory problems and did not understand what was happening. He also relied on the evidence of Dr Adams in both his reports to the effect that it was "reasonably likely that Mr Khamis continued to experience symptoms of psychosis between August 2010 and January 2011". The applicant submitted that in those circumstances it would not matter what advice he might have received from his lawyers as he was unlikely to have been able to fully comprehend it. Consideration 62There are a number of difficulties which the applicant has to overcome in order to succeed. As Dr Adams fairly conceded, having examined the applicant almost 3 years after the plea of guilty was entered, he was not in a position to say any more than that it was "reasonably likely that the applicant was experiencing symptoms of paranoid schizophrenia in November 2010". What he could not say was that such symptoms were active on 9 November 2010. Even if they were active, he could not say that they would have prevented him from understanding what he was being told by his legal advisors. Just because a person suffers from a mental disease, such as schizophrenia, does not mean that the person is unable to function and in particular is unable to understand what is being said to him or her. 63It also needs to be kept in mind that the qualified opinion of Dr Adams is balanced by the assessment of Dr Allnutt, albeit also qualified to the effect that although he was probably suffering from schizophrenia, his complaints of symptoms were atypical in a number of respects and were suggestive of embellishment or exaggeration. Moreover, Dr Allnutt reached a different conclusion to that of Dr Adams and found that taking into account the circumstances in which the plea was entered and in particular the applicant's experience of the legal system over the preceding 3 years leading up to the plea, it was likely that the applicant fully understood what was going on. 64When the reports of both doctors are read, each has tried to be fair and to accurately review the material which they had before them. Each doctor considered the same material, in particular the entries which were made by doctors employed by Justice Health. Each doctor was very much dependent upon the history give to him by the applicant. Despite examining the same material, the doctors arrived at different conclusions. In that sense, the medical opinions are equally balanced, both for and against the applicant, and do not tip the scales either way. 65It is therefore necessary to look at the applicant to assess, as best one can, his reliability as an historian. The conclusion I have arrived at is that the applicant is an unreliable historian and this must affect significantly the validity of the conclusions arrived at by Dr Adams. 66In his ERISP the applicant told the police that other than hugging and kissing, no sexual activity took place. This is clear from the ERISP despite the absence of an interpreter. The sworn testimony of the applicant at trial was significantly different to that which he told the police. At trial his evidence was that the complainant aggressively made sexual advances towards him which culminated in him ejaculating onto his underwear and then leaving the room. That evidence was confirmed by what he told the author of the pre-sentence report. 67The explanation for this change in history is apparent when one has regard to the 2008 DNA reports which showed that his semen was present on the complainant's bed. If at trial he had adhered to what he told the police, he was unlikely to have been believed because of the DNA evidence. 68Looked at in that way, the change in evidence between what the applicant said in the ERISP and what he said at trial, shows an awareness of the proceedings and their purpose. Because of the DNA evidence, the applicant needed to provide an explanation which was consistent with the presence of his semen in the complainant's bed but which did not involve an offence on his part. 69By the time of the retrial on 9 November 2010, further DNA evidence was available which made it very likely that there had been sexual penetration by him of the complainant's vagina and that he had not been telling the truth to the police in the ERISP and that he had not been telling the truth when he gave evidence in the first trial. The only way the applicant could reconcile the new DNA evidence with an absence of offending on his part was to say that penile intercourse had taken place but that it had been consensual. The difficulty with giving that evidence was that he would have to explain why it was that he gave different evidence in the first trial and yet another different narrative to the police when arrested. There was a real likelihood that his credit would be substantially damaged. 70In those circumstances, a strong inference exists that these matters were explained to him by his legal advisors on 9 November 2010, together with the advantages of pleading guilty, and that that is why he entered a plea of guilty at that time. That inference is supported by the recollection of his solicitor and barrister at the time, even though because of delay their notes of what happened no longer exist. The inference is also supported by the affidavit of Ms Engel, the solicitor for the Crown, at the time. 71Against that background, the content of the applicant's affidavit prepared for these proceedings is readily explicable. Because of the further DNA evidence which became available in November 2010, it is now necessary for the applicant if he were successful in having his plea of guilty set aside and if he went to a retrial, to explain how penile intercourse took place in such a way as to not involve an offence on his part. Once again that change of position on the part of the applicant demonstrates an awareness of the charge which he is facing and of the substance of the proceedings to which he pleaded guilty in November 2010. 72It is also against that background that his oral evidence in these proceedings needs to be considered. Apart from that evidence being quite inconsistent with his previous evidence as to what happened between him and the complainant on 28 October 2007, it was unconvincing in the extreme. The applicant was evasive and made no genuine effort to answer the questions which were put to him. His protestations that he had no memory of significant events, or that he was "out of his mind" on particular occasions, was incredible. I do not accept as accurate the evidence of the applicant in these proceedings. 73Even on the issue of whether an interpreter was present on 9 November 2010, the applicant's evidence in his affidavit is unreliable. The statement of facts signed by him and by the interpreter, with the interpreter's endorsement upon it, together with the evidence of his solicitor and counsel, demonstrate the inaccuracy of that evidence. 74Even allowing for the loss of their notes due to the effluxion of time, the affidavits of the applicant's counsel and solicitor point strongly to him understanding what happened on 9 November 2010. Mr Johnson is a very experienced counsel, who has acted for many persons with mental illness for over 25 years. He always made a point of endeavouring to ensure that all his clients understood what he was saying to them and that he understood their instructions. 75Similarly, Ms Hunter had no recollection of the applicant's demeanour being unusual and it was her usual practice to obtain written instructions where a plea of guilty was to be entered. I accept that she did so on this occasion, that such instructions were signed by the applicant but that her file has now been lost or destroyed. 76Two of the notes in the Justice Health medical records support the inference that the applicant was well aware of the nature of the proceedings and of his situation as a convicted criminal. Those notes were made on 12 November 2009 when he saw Dr Elliot and told him that he was worried about his appeal and felt that his lawyer was ignoring him. The other note, dated 28 August 2010, described an occasion when the applicant had come back from court after his matter had been adjourned when he was hoping to get bail. The note recorded that his solicitor was arranging for a psychiatric report for the court. These notes are strongly suggestive of reasonable knowledge by the applicant of the court processes. 77What is also of significance is that on the occasion of the plea of guilty, a short report from Dr Mahmood, dated 3 November 2010, was placed before Blanch J. It indicated that the applicant was suffering from "thought disorders and auditory hallucinations and preliminary diagnosis of schizophrenia made. He has been commenced treatment two months ago and awaiting response and adjusting dose currently to reach optimum dose". Defence counsel made no submissions in relation to this report and the Crown submitted that it was of "little weight". The presiding judge made no reference to it in his remarks on sentence. It can be inferred from this absence of comment that if the applicant were behaving in a way consistent with an active schizophrenic episode, something would have been said by his counsel. 78The short report from Dr Mahmood serves another useful purpose. It is the only medical material which is reasonably contemporaneous with the plea of guilty on 9 November 2010. The report supports the diagnosis of Drs Adams and Allnutt that the applicant was probably suffering from schizophrenia at the time, although this was only a preliminary diagnosis by Dr Mahmood. Importantly, however, the report confirms that the applicant was receiving treatment for his condition at the time of the hearing on 9 November 2010 and had been for two months. 79Although it can be accepted that the applicant was suffering from schizophrenia on 9 November 2010, there is no evidence that the condition was active at that time. The evidence of Ms Engel, Mr Johnson and Ms Hunter is to the contrary. The applicant's evidence, given in the appeal as to his state of mind at the time, is unreliable. His evidence also needs to be considered against the reservations expressed by Dr Allnutt as to embellishment. 80The most likely explanation for the applicant's plea of guilty on 9 November was the receipt of the new DNA evidence. This evidence gave the lie to the position which he had adopted up to that point in time, i.e. that no sexual penetration had occurred between him and the complainant. As already indicated, the admission of the new DNA evidence in the retrial would have been catastrophic insofar as the applicant's credit was concerned. In a case such as this, his credit was of fundamental importance if he were to have any real hope of avoiding conviction. 81The new DNA evidence, coupled with the Crown's concession that it would not ask that he be returned to custody to serve the balance of his sentence, provide a complete and logical explanation for his plea of guilty. In those circumstances, the making of a plea of guilty was very much to the applicant's advantage. As Mr Johnson and Ms Hunter made clear in their affidavits, the advantages and disadvantages of entering a plea of guilty would likely have been explained by them to him. 82Accordingly, it matters not that the applicant may not have fully appreciated that he still had some obligations under the criminal justice system, i.e. reporting on a regular basis to the Probation and Parole Service. 83I am not persuaded that there was any miscarriage of justice associated with the entry of the plea of guilty. These were the set of circumstances described in Van and Wong. There was nothing irrational in the entry of the plea of guilty by the applicant on 9 November 2010. 84Dr Adams' report, although thorough in detail, lacks contemporaneity. It was very much based upon an acceptance of what the applicant told him which for the reasons already given, was unreliable. Putting Dr Adams' opinion at its highest, it went no further than that the applicant was "reasonably likely to continue to experience symptoms of paranoid schizophrenia on or about 9 November 2010". That is an opinion expressed in relation to the overall condition. It says nothing about whether the condition was active on 9 November 2010. Although Dr Adams said that people who suffer psychotic symptoms in the form of delusions and hallucinations might suffer a reduced capacity to adequately receive legal advice and proper instructions, he was unable to say whether this was the case with the applicant on 9 November 2010. 85The evidence of Dr Adams is not sufficient to discharge the onus which the applicant carries in this appeal. On the contrary, the evidence from other persons who were present on 9 November, the applicant's unreliability as an historian generally, and the strong motivation which the applicant had to enter a plea of guilty rather than undergo a retrial, satisfy me that he did have a full understanding of the implications of entering a plea of guilty when he did so on 9 November. 86This ground of appeal has not been made out. It follows that no useful purpose would be served in granting an extension of time. 87I propose the following order: (1) That the application for an extension of time within which to seek leave to appeal is refused. 88McCALLUM J: I agree that the application for an extension of time should be refused, for the reasons stated by Hoeben CJ at CL. The interests of justice often demand that the time for bringing an appeal be extended, notwithstanding the public interest in finality, but I do not think this is such a case. As noted by the Chief Judge, leaving aside the question of substantial injustice to the applicant, the circumstances of this case point strongly in favour of refusing an extension of time. The unhappy prospect of the complainant having to make a choice as to whether to give her evidence again, or else leave the prosecution to rely upon the record of her evidence given at the first trial, is particularly compelling. The Chief Judge has explained that the question whether refusal of the application would entail substantial injustice to the applicant requires this Court to focus on the integrity of the plea at the time it was entered. The psychiatric evidence on that issue, which rests heavily on the histories obtained by each psychiatrist from the applicant, ultimately goes little higher than to establish the existence of a possibility that the applicant did not fully understand that a plea of guilty meant that he was admitting his guilt of the offence. Having regard to the context in which the plea was entered, the careful evidence of the two lawyers who were advising the applicant at that time and the unconvincing evidence of the applicant himself, I have not been persuaded that it is more than a very remote possibility. 89GARLING J: I agree with the orders proposed by Hoeben CJ at CL, and with the reasons which he gives. 90In particular, I concur with his Honour's assessment of the credibility of the oral evidence of Mr Khamis in the course of the hearing of the appeal. 91I am of the opinion that when Mr Khamis entered a plea of guilty before Blanch J, the Chief Judge of the District Court, he did so in the full knowledge of what it meant, and what the immediate (and beneficial) consequence of that plea would be. 92I agree that an extension of time for the lodging of an appeal should be refused. ********** 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. Decision last updated: 15 August 2014