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R v WBA (No 2)

 

[2018] QCA 360

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v WBA (No 2) [2018] QCA 360

PARTIES:

R
v
WBA
(appellant)

FILE NO/S:

CA No 96 of 2017

DC No 210 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 672A Criminal Code

ORIGINATING COURT:

District Court at Toowoomba – Date of Conviction: 6 June 2014 (Richards DCJ)

DELIVERED ON:

21 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2018

JUDGES:

Sofronoff P and Morrison JA and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the appellant was charged with a number of sexual offences committed against his daughters – where the appellant pleaded guilty to 16 counts relating to these sexual offences – where the appellant submits that his pleas of guilty were made involuntarily and therefore a miscarriage of justice has arisen – where the appellant submits that he was pressured into pleading guilty by his legal representatives, statements made by the trial judge and his medical conditions – where the appellant and his legal representatives gave evidence in chief and in cross-examination at the hearing of the appeal – whether the evidence of the appellant ought to be accepted and, if it is accepted, whether his pleas of guilty were a miscarriage of justice

Liberti v The Queen (1991) 55 A Crim R 120, cited

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, applied

Naniseni v The Queen [1971] NZLR 269, considered

R v Forde [1923] 2 KB 400, considered

R v Inns (1974) 60 Cr App R 231, cited

R v Murphy [1965] VR 187; [1965] VicRp 26, considered

COUNSEL:

B Blond for the appellant

M R Byrne QC for the respondent

SOLICITORS:

Stockley Pagano Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    THE COURT:  The appellant was charged with numerous sexual offences against his three daughters.  The indictment was split and, on 3 June 2014, a jury convicted him of several sexual offences committed against his youngest daughter, SWS.  Richards DCJ was the presiding judge.  Her Honour sentenced the appellant on the following day to an effective term of imprisonment of four years with parole eligibility on 3 June 2016.
  2. [2]
    On 5 June 2014 her Honour presided over the pre-recording of evidence from the appellant’s two older daughters, CWS and TWS, who were to be witnesses at the second trial.
  3. [3]
    On 6 June 2014 the appellant pleaded guilty before Richards DCJ to the remaining 16 sexual offences with which he had been charged.  Her Honour sentenced him to five years imprisonment cumulative upon the sentence she had imposed after the trial.  The effect of the sentences was that the appellant would serve nine years imprisonment with parole eligibility after four years.
  4. [4]
    The appellant appealed against his conviction for the offences of which he had been found guilty after trial.  On 5 February 2015 this Court allowed that appeal and verdicts of acquittal were entered.[1]
  5. [5]
    As a consequence of his success on the appeal it was necessary for the appellant to be resentenced.  On 18 May 2015 Richards DCJ re-opened the sentence that she had imposed upon him on 6 June 2014 and re-sentenced him to a period of imprisonment of six years with parole eligibility on 6 December 2016.
  6. [6]
    On 21 April 2016 the appellant petitioned the Governor for a pardon and the Attorney-General referred the case to this Court pursuant to s 672A of the Criminal Code.  That provision requires this Court to determine the case “as in the case of an appeal by a person convicted”.
  7. [7]
    The appellant submits that there has been a miscarriage of justice because his pleas of guilty were involuntary because he had consistently instructed his legal representatives that he wished to plead not guilty and he changed his instructions:

“… after being pressured by way of:

  1. his legal representatives; and/or
  2. the statements made by the Judge; and/or
  3. his medical conditions.”[2]
  1. [8]
    The principles governing an appeal against conviction upon the ground that a plea of guilty was involuntary are well settled.  In R v Forde[3] the appellant had pleaded guilty to four sexual offences on the advice of his counsel.  Avory J, with whom Lord Hewart CJ and Salter J agreed, said:

“The first question that arises is whether this Court can entertain the appeal.  A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.”[4]

  1. [9]
    In R v Murphy[5] the Full Court of the Supreme Court of Victoria adopted these principles.  In the course of their reasons, Herring CJ and Adam J observed that it is not the function of the appellate court to try the issue of guilt or innocence when hearing an appeal against conviction on a plea of guilty.  Sholl J said that the fundamental question in such appeals is whether, in the court’s opinion, there has been a miscarriage of justice.  His Honour said that the principles in R v Forde ought not be regarded as exhaustive of all possible cases of miscarriage of justice.  He gave, as an example, a guilty plea induced by the threats of a fellow accused or of a police officer.
  2. [10]
    In Naniseni v The Queen,[6] Turner J, in delivering the judgment of the Court of Appeal of New Zealand, said:

“What must appear, if a confession is to be held voluntary, is in our opinion no more and no less that it has been made by the prisoner, his will in making it not being overborne by the will of some other person by means of some consideration such as has been mentioned above.  Not that the considerations which we have enumerated are to be narrowly interpreted as constituting a necessarily exhaustive list.  But the fact which is relied upon as having overborne, or as apt to overbear, the will of the prisoner, must be found in the will of some other person, by the exertion of which his confession is induced or is deemed by the law to have been induced.  The will of some other person is essential; the involuntariness cannot be produced from within.  Such consideration as fatigue, lack of sleep, emotional strain, or the consumption of alcohol, cannot be efficacious to deprive a confession of its quality of voluntariness, except, perhaps, so far as any of these may have been brought about or aggravated by some act or omission by other persons to the end that a confession should be made.  Of course such considerations as we have mentioned, while not sufficient to deprive a confession of its “voluntary” quality, may yet be relevant in two subsequent stages of the matter.”[7]

  1. [11]
    The Australian cases to which we have been referred were considered by the High Court in Meissner v The Queen.[8]  That was a case in which the appellant had been charged with attempting to pervert the course of justice.  The criminal act was said to have been constituted by the appellant’s improperly endeavouring to influence a person to plead guilty.  This raised the question about the nature of a guilty plea and the circumstances in which a guilty plea could be said to be voluntary.  Brennan, Toohey and McHugh JJ cited the following dictum of Lawton LJ in R v Inns:

“The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt.  When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all.”[9]

  1. [12]
    Their Honours observed that it would often be difficult to determine whether conduct that has a tendency to induce an accused person to plead guilty is improper conduct or not.  They said that argument or advice that merely seeks to persuade an accused to plead guilty is not improper conduct, no matter how strongly the argument or advice is put.  Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge.  Their Honours concluded:

“As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.”[10]

  1. [13]
    Dawson J also addressed the distinction between proper and improper pressure:

“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.”[11]

  1. [14]
    In Liberti v The Queen[12] Kirby P offered the following caution:

“For good reasons, Courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection.  This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence …”[13]  (citations omitted).”

  1. [15]
    The appellant gave evidence on the hearing of this appeal.  His affidavit was tendered and he was cross-examined.
  2. [16]
    We have therefore had the advantage of observing the appellant give evidence in chief and in cross-examination.  It became clear at an early stage of his evidence that he is a man whose evidence cannot be accepted unless it is corroborated.
  3. [17]
    One aspect of his evidence that can be accepted because it has been corroborated is this: he and his legal representatives thought that the case against the appellant that was the subject of the previous trial was weak.  They expected the appellant to be acquitted of those charges.  They were surprised at the guilty verdicts.  That view was vindicated by the decision of the Court of Appeal to quash the convictions on the ground that the verdicts were unreasonable.  It was in a frame of mind of shock and disappointment that the appellant had to decide how he would plead to the remaining charges.
  4. [18]
    As we have said, after he was sentenced in respect of the guilty verdicts, and on the following day, the evidence of the remaining complainants was the subject of pre-recording before Judge Richards.  The appellant said in his affidavit that he was “shocked to see Judge Richards presiding over the same matter” and that, in his view, “this must be a conflict of interest but Mr Martin [his counsel] did not appear to be concerned”.  That lack of concern on the part of Mr Martin was understandable because there was no reason why Richards DCJ ought not have presided over the pre-record and later, as her Honour did, over his plea of guilty when he made it.
  5. [19]
    The appellant then said in his affidavit:

“42. I was confused when Mr Martin told me that it was wise to offer something to the Department of Public Prosecutions to keep them happy.  Mr Martin suggested that I could do this by pleading guilty to one of the lesser charges in relation to TWS so the rest of the charges could be dropped.

  1. This made absolutely no sense to me so I gave instructions to enter a plea of not guilty and signed typed instructions to this effect on Thursday 5 June 2014.
  1. The instructions were clear as to my wish to enter a plea of not guilty to the charges and have them dealt with by way of a trial in the District Court of Queensland at Toowoomba.”
  1. [20]
    According to the appellant, his counsel, Mr Martin, told him that “he could not win the case” and recommended that he change his plea.  The appellant instructed Mr Martin that he would not change his plea.  Mr Martin and the appellant’s solicitor, Ms DeLeon, told him that “the Judge’s comments meant that CWS was a star witness”.  Mr Martin told the appellant that, having been found guilty on a trial that had been “a lay down misère”, Richards DCJ would find a way to direct a new jury to get a conviction”.  Mr Martin told the appellant that he would “go away for a long time” and that he had “seen many innocent people go to jail”.
  2. [21]
    As a result of this, the appellant said:

“I was now in a panic as I felt pressured to change my plea.  I knew that pleading guilty was not attributable to a genuine consciousness of guilt on my part yet I was now being forced to proceed on this basis.”

  1. [22]
    The appellant said that at the time of his trial he had “uncontrolled diabetes” which he “managed by insulin injection”.  He said that he would often pass out due to the unstable nature of his condition which was worsened by stress.  At the time of his “panic” he said he could neither eat nor sleep at the watch house which exacerbated his diabetes.
  2. [23]
    That night, at the watch house, the appellant asked for a priest.  A counsellor visited him on the next morning, Friday, 6 June 2014.  The result of this interview was inconclusive.  The counsellor “acknowledged I had a very tough decision to make”.
  3. [24]
    According to the appellant, his lawyers came to see him.  They told him that they had spoken to the prosecution and had established that if he pleaded guilty “once I win my appeal [against the earlier conviction] the sentence would be brought down further”.
  4. [25]
    The appellant says that he maintained his instructions that he would not plead guilty.  It is necessary to set out the following paragraphs:

“58. I told my legal team that I would not plead guilty and I wanted to fight this as I was innocent of the charges.  Mr Martin commented to me that he could never have won my case and I should remember that I could be spending a long time in the big house.  I took this to be a threat that if I did not comply with his request I could be in a lot of trouble.

  1. Mr Martin asked me if I had any additional issues for the Judge to hear before passing sentence.  I advised him of my diabetes and vision impairment and he responded that I should have said something originally.  I replied to Mr Martin that he was aware of this information but he dismissed my comments.
  1. When court resumed Ms DeLeon approached me in the dock and handed me a handwritten document over the glass.  It was more than one page in handwriting unknown to me.
  1. My legal team were fully aware that I am clinically blind in my right eye and have 50% sight in the left eye wearing glasses.  I was asked to sign the document but not to read it.  I felt immense pressure to act as Judge Richards had entered the court room.
  1. I relinquished under the pressure and signed the document.  I later found that the document was allegedly signed by me at 11:22am according to Ms DeLeon’s notation on the plea of guilty instructions.  This is despite court having resumed at 11:21am.
  1. Mr Martin advised the Court of my plea of guilty.  Proceedings were stopped and it was announced that I would be brought back later for sentencing.
  1. My legal team came to the watch house to tell me what was expected of me at sentencing.  Mr Martin told me the words to use before the Judge and advised me of his plan once my appeal was won and that I would be out after six (6) months.
  1. I felt conflicted for not trusting him.  I kept reminding myself that my legal team had a duty to represent my interests and Mr Martin would not let me down.  My thinking was that if Mr Martin could have me released in six months then this would probably be the best option for me and my family.
  1. I felt sick to my stomach as I uttered the word of guilty to each charge.  I looked to Mr Martin and he physically gestured for me to keep going as each charge was read out.
  1. My diabetes and vision problems were raised in Mr Martin’s sentencing submissions but later trivialised by Judge Richards in her sentencing remarks.  I realised that the severity of my symptoms had not been considered as a significant contributing factor by my legal team.
  1. I recall Judge Richards’ comments after I had pleaded guilty which made me feel ill.  Her Honour said it was not a strong case until CWS gave her evidence.  Judge Richards referred to CWS as an amazing witness.
  1. I struggled to understand how Judge Richards could make this determination before CWS’s evidence had been tested and only after 39 minutes.  My instinct told me that I had been let down by my legal team.  They had struck a deal with the prosecution and the decision had already been made to have me plead guilty.”
  1. [26]
    After the appellant was sentenced by Richards DCJ the appellant awaited the outcome of his appeal.  While in prison he refused to complete a sex offenders’ course “as this would be an admission of guilt”.  He thought this offer of a course by prison authorities was a further inducement to him to accept his guilty plea.
  2. [27]
    The appellant’s appeal against the trial verdicts was allowed on 5 February 2015.  The appellant’s reaction was as follows:

“75. I was relieved and elated by this outcome as I could now have the plea of guilty removed on the basis of my innocence and the matter could go to trial and justice would be served.

  1. I realised that I had been ambushed into pleading on the sole basis of SWS’s allegations which were now proved to be false.  It confirmed to me that SWS would have needed help to make up her story and I was keen to have CWS and TWS’s evidence tested before a jury.
  1. I told Legal Aid I wanted my plea of guilty overturned and take my matter back to trial as I was confident that the charges were fabricated.  They assured me they would discuss it with Mr Martin.  Legal Aid came back to me some time later to advise me that I would be going to Toowoomba for a re-sentencing hearing and represented by Mr Martin.  When I queried about having the guilty plea removed, Legal Aid advised that they had no idea about that but my sentence would be reduced to 18 months minimum.”
  1. [28]
    The appellant summarised his position as follows:

“86. Mr Martin falsely led me to believe that it was in my best interests to plead guilty.  I soon realised that I had been pressured and influenced to proceed on a plea that was completely against my instructions.  My legal team wilfully ignored by disability and state of health and did not follow proper process in fully advocating my case.”

  1. [29]
    The appellant’s account has it that he had insisted to his lawyers that he would not plead guilty.  Yet, according to his evidence, when Court resumed his solicitor, Ms DeLeon, gave him a handwritten document that he could not read and which she passed over the glass partition of the dock, telling him to sign it.  Not knowing what it contained because he was “clinically blind in my right eye and have 50% sight in my left eye” the appellant signed this document correctly in four places.  In fact, as the evidence showed, and as was common ground, the document was a set of four pages of handwritten instructions prepared by Ms DeLeon which, in some detail, instructed his legal representatives that he would plead guilty.  The document was handwritten on note paper with the letterhead of the appellant’s solicitors.  It was headed with the appellant’s name and stated that “time commenced” at 11.15 am and “time concluded” at 11.22 am.  It was dated 6 June 2014 and stated that “D. DeLeon” is the author.  The note was said to record a conference with “WBA”.  The body of the document is as follows:

“RE: PLEA OF GUILTY INSTRUCTIONS

I, WBA, of 123 [IDENTIFIED] Road in the State of Queensland understand I have been charged with the following matters before the District Court at Toowoomba in relation to:

CWS

Indecent treatment of children under 16, who is a lineal descendent under care x 6

rape x 3

maintaining a sexual relationship with a child x 1

common assault x 1

sexual assault x 1

TWS

indecent treatment of a child under 16, who is a lineal descendent under care x 3

I have received advice from my legal representative about the nature of charges and the case against me, that there are prospects of being convicted.

In relation to the case involving CWS, I have seen the statement of Maree Johnston.  Counsel has advised that at paragraph 26 of her statement that evidence would come against me and if it came out in evidence, I would more than likely get convicted.  I have signed the statement of Maree Johnston.

I have been advised that if I continue and Counsel cross-examines CWS I would lose any discount in sentence if I plead guilty now and before continuing with the Crown questioning her.

I have had time to consider my decision and know I have the right to plead guilty or not guilty to the charges.

I instruct my Counsel that I wish to plead guilty to charges.  I make this decision of my own free will, without pressure, promise or inducement.  I am fully aware of the consequences of my decision.

Even though Counsel has advised me to not plead guilty just because to get a lesser sentence because it is the Judge who makes the decision.  And I’m pleading guilty with the full knowledge of that advice.

I’m also pleading guilty knowing that Counsel has informed me that para 26 in Maree Johnson’s statement after argument may be excluded.

[signed by WBA]

WBA

Dated 6th June 2014 at Toowoomba

Witnessed by Divina DeLeon

Solicitor

MacDonald Law

[signed by Divina DeLeon]

6th June 2014”

  1. [30]
    According to the appellant’s case, he not only had no time to read this document but was physically incapable of doing so.  It is therefore impossible to understand why he says that he “relinquished under the pressure and signed the document”.  According to his oral evidence, Ms DeLeon handed him the four page document over the glass partition to where he occupied the dock.  According to him, Ms DeLeon said words to the effect “Do not read it”.  He took the document, signed it and returned it.  This took between 20 and 30 seconds, “as quick as I could”.  He had “absolutely, no knowledge at all” of the content of the document.  Being unable to read it, he was nevertheless able to sign it at the top of the right hand corner of pages 2, 3 and 4 and at the end of the body of the document, just above his name and the date of the document on the fourth page.  He did not explain why he signed it or what he thought he was signing or how he was able, having regard to his blindness, to find the correct places for his signature.
  2. [31]
    The appellant’s statement that “Mr Martin advised the Court of my plea of guilty” is not true.  On the contrary, the transcript records that when Court resumed Mr Martin informed her Honour “Now, your Honour, I have instructions [indistinct] my client to be re-arraigned on the indictment with TWS and also CWS”.  Thereafter, the appellant was re-arraigned and himself pleaded guilty to the first four charges as they were read out to him by the judge’s associate.  As is usual, the allocutus was administered as follows:

“WBA, you have been convicted on your own plea of guilty of three counts of indecent treatment of children under 16 who is a lineal descendant under care, and one count of indecent treatment of a child under 16.  Do you [have] anything to say as to why sentence should not be passed on you?

Defendant: No, your Honour.”

  1. [32]
    Thereafter, the appellant then pleaded guilty to a further twelve charges as they were read to him.  The matter was adjourned at 11.30 am and resumed at 12.23 pm when the learned judge heard submissions on sentence.  The appellant was sentenced at 12.59 pm on the same day.
  2. [33]
    On the appellant’s account the change from his decision to plead not guilty to his decision to plead guilty is simply unexplained.  How Mr Martin learned of the change is a mystery.  Having insisted that he would maintain his instructions to plead not guilty, having signed a document that he could not read, the appellant then pleaded guilty successively on 16 occasions without earlier giving anyone notice of his intention to do so.
  3. [34]
    We reject the appellant’s evidence that he “felt pressured to change my plea” or that he felt that he was “being forced to proceed” on the basis of a guilty plea.
  4. [35]
    In any event, none of his evidence, even if we were to accept it entirely, is capable of giving rise to a conclusion that his pleas of guilty were a miscarriage of justice.  Even if it were accepted that he was affected by his disappointment and surprise at the jury’s guilty verdicts and by his lawyers’ pessimism, that does not amount to a basis upon which to conclude that his plea was involuntary or that it was occasioned by a miscarriage of justice.  Upon his own evidence, what Mr Martin told him was true.  He had been found guilty at a trial that Mr Martin had advised him he could expect to win.  Mr Martin’s advice to take into account that unexpected loss in considering whether or not to plead guilty was advice that any competent counsel would give a client.  Mr Martin’s reminder, if it was given, that the appellant could be spending “a long time in the big house” was also advice that is commonly given.  Nor does the appellant’s evidence, if it were accepted, about the state of his health give rise to any justifiable concern about the character of his pleas.  However, we reject that evidence, unsupported as it is by any medical evidence.  It is also contrary to express statements that he made to police about the remission of his diabetes.
  5. [36]
    Because of the attack that the appellant made upon the integrity of his legal representatives it is necessary to recount their evidence.  Mr Martin and Ms DeLeon gave oral evidence and were cross-examined.  They were both honest and forthright witnesses.  Their evidence demonstrated that they approached the performance of their duties to their client with professionalism and skill.  Having heard them give evidence, we have no doubt that their evidence was truthful, accurate and comprehensive.
  6. [37]
    Mr Martin has been a barrister for over 41 years and has practiced principally in the criminal jurisdiction.  He advised his client on a number of occasions about the considerations that he should bear in mind in making his decision about a plea.  He gave him advice about the effect upon the prospects of success of a second trial of a new statement that the prosecution had delivered, that of Maree Johnston that is referred to in the written instructions.  Mr Martin explained the range of penalties that might be imposed after a trial or after a plea of guilty.  He repeated on a number of occasions that the decision about pleading guilty or not guilty was a matter entirely for the appellant.  On the morning of 6 June the appellant advised Mr Martin and Ms DeLeon that he would plead guilty.  Mr Martin told Ms DeLeon to ensure that she obtained signed instructions from the appellant and that the appellant understood what it was that he was signing.  This is exactly the kind of advice that one would expect an experienced senior criminal barrister to give to his instructing solicitor.
  7. [38]
    The appellant had not told Mr Martin that he had difficulty reading because of his eyesight.  On the contrary, the appellant had informed Mr Martin that he had done two courses in jail, namely a word processing course and an IT course.  We accept that Mr Martin did not tell the appellant that he could not win the case.  We accept that the appellant did not tell Mr Martin or Ms DeLeon about any vision difficulties.
  8. [39]
    Ms DeLeon explained in her evidence that the appellant had told her and Mr Martin that he had spoken to a counsellor while he was in the watch house.  As a result of that conversation he had thought again and had decided to change his instructions.  She said that Mr Martin then left to speak to the Crown Prosecutor.  He returned and told the appellant about the range of sentence that he might expect having regard to the Crown’s attitude on a plea of guilty.  At that point the appellant instructed his legal representatives that he intended to plead guilty.
  9. [40]
    Mr Martin and Ms DeLeon were in an interview room in which they were separated from the appellant by a plate of glass.  Mr Martin left the room and Ms DeLeon remained to write out the instructions in the terms set out earlier.  She did so in the presence of the appellant who was sitting on the other side of the glass partition.  She explained that the time period recorded on the written instructions reflects the time that she spent reading the instructions aloud to the appellant.  She did that to ensure that he understood the content of the document that he was about to sign.  Even then, according to her evidence, she:

“… did indicate to him that I believed that he should still plead not guilty if he was not guilty of the charges …”

  1. [41]
    A watch house officer took the written document from her and gave it to the appellant.  Ms DeLeon asked the appellant to read each page and to sign each page to acknowledge that he understood its content and his instructions.  He appeared to read them and said nothing to the effect that he could not read them.  He signed the document.
  2. [42]
    It was put to Ms DeLeon in cross-examination that at some point well after the appellant had signed the written instructions and not in his presence she had inserted the final paragraph of the document (which appears just above the appellant’s signature).  She denied doing so.  Mr Blond, who appeared for the appellant, informed the Court that he had express instructions to make that scandalous allegation.  We find that this was a proposition that the appellant fabricated in order to explain how, on his version of events, without useable eyesight, he was able to insert his signature at precisely the designated point for a signature.  On his version, he merely signed on the last page of the document at some point in the middle of the page above which there was no writing.  Failing that story, he could not explain the precision with which he was able to place his signature just at the right spot on the page although he could see nothing.
  3. [43]
    As we have said, we reject the evidence of the appellant where it is not corroborated.  In particular, we reject his claim that his pleas of guilty were involuntary.  We accept the evidence of Mr Martin and Ms DeLeon.  We find that the appellant’s pleas of guilty before Richards DCJ were voluntary.
  4. [44]
    For these reasons we would dismiss this appeal.

Footnotes

[1]  See R v WBA [2015] QCA 21.

[2]  Appellant’s Outline of Submissions paragraphs [14] and [22].

[3]  [1923] 2 KB 400.

[4] Supra at 403.

[5]  [1965] VR 187.

[6]  [1971] NZLR 269.

[7] Supra at 274-275.

[8]  (1995) 184 CLR 132.

[9]  (1974) 60 Cr App R 231 at 233.

[10] Supra at 143.

[11] Supra at 157.

[12]  (1991) 55 A Crim R 120.

[13] Supra at 122.

Close

Editorial Notes

  • Published Case Name:

    R v WBA (No 2)

  • Shortened Case Name:

    R v WBA (No 2)

  • MNC:

    [2018] QCA 360

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Henry J

  • Date:

    21 Dec 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC210/13 (No Citation) 06 Jun 2014 Date of Conviction (Richards DCJ).
Appeal Determined (QCA) [2018] QCA 360 21 Dec 2018 Attorney-General's referral under s 672A Criminal Code; appeal against conviction dismissed: Sofronoff P and Morrison JA and Henry J.

Appeal Status

{solid} Appeal Determined (QCA)