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  • Unreported Judgment

R v Fraser

 

[2019] QSCPR 8

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fraser [2019] QSCPR 8

PARTIES:

R

v

FRASER, Troy James

(applicant)

FILE NO:

631 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application under s 590AA of the Criminal Code

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2019

JUDGE:

Bradley J

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – WITHDRAWAL AND RESTORATION OF PLEA – where the applicant pleaded guilty on the morning of trial to three counts on an indictment – where the applicant contends he was induced to enter the pleas of guilty by threats from his co-accused – whether the evidence of the applicant ought to be accepted and, if it is accepted, whether allowing the guilty pleas to stand would cause a substantial miscarriage of justice

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited

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

R v Boag (1994) 73 A Crim R 35, cited

R v Carr-Briant [1943] KB 607, followed

R v Liberti (1991) 55 A Crim R 120, followed

R v MacKenzie (2000) 113 A Crim R 534; [2000] QCA 324, followed

R v Moxham (2000) 112 A Crim R 142; [2000] QSC 152, cited

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

R v Popovic [1964] Qd R 561, followed

R v WBA (No 2) [2018] QCA 360, cited

COUNSEL:

M Harrison for the applicant

C Wallis for the respondent

SOLICITORS:

Rostron Carlyle Rojas for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    This is a decision on an application by Troy James Fraser for a pre-trial direction setting aside the guilty pleas he entered when he was arraigned on three counts on an indictment.

Approach to determining such an application

  1. [2]
    An accused’s guilty plea is normally understood as an admission by that person of the necessary legal ingredients of the offence.  Having admitted the offences, the applicant must persuade the court that he ought to be allowed to contest the three counts, notwithstanding the high public interest in the finality of legal proceedings.[1]  
  2. [3]
    For the applicant, it is contended that the court ought to exercise a discretionary power, to be inferred from s 600 of the Criminal Code, to direct the entry of a plea of not guilty for each of the counts, notwithstanding that the applicant pleaded guilty when arraigned before the court.  This power has been recognised,[2] but is exercised only where allowing the guilty pleas to stand would produce a miscarriage of justice.[3]  The development of the principles was explained by the Court of Appeal in R v WBA (No 2).[4]
  3. [4]
    The authorities and the categories, in so far as they had then been identified, were considered by Mullins J in Moxham.[5]  This application is made on the basis of a well-accepted category where a miscarriage of justice may occur, namely where a guilty plea has been induced by threats, absent which, the accused would not have pleaded guilty.[6] 
  4. [5]
    The applicant also deposed that he only had a short time to make his decision about whether to plead guilty or to proceed to trial.  No submission was put to the court on his behalf that this was a matter that should affect the court’s consideration of the application for leave to withdraw the pleas.  There could be no criticism of that forensic judgment.  In order to obtain any significant benefit from a guilty plea, the applicant needed to make the decision before the trial started on 4 September 2018.  He could have made that decision at any time after 4 May 2018 when the present indictment was presented.  So, the applicant had four months in which to consider and decide whether to plead guilty to the counts in question.[7] 
  5. [6]
    It follows that the application is to be decided on the ground of whether the applicant’s guilty pleas on 4 September 2018 were induced by duress or intimidation. 
  6. [7]
    The circumstances that must be proved, in order to amount to a miscarriage of justice, have been described as exceptional.[8]  This follows from the nature and significance of the process of arraignment. 

“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.  All that follows thereafter is, in our judgment, a nullity.”[9]

  1. [8]
    The applicant bears the onus of persuading the court that there has been a miscarriage of justice.[10]  The assessment of any relevant evidence is to be made on the balance of probabilities, as the burden on an accused could be no higher than would apply for any other matter the accused was called upon to establish.[11]  The seriousness of an applicant’s allegation must be borne in mind in determining whether the applicant has satisfied the court.[12]

The evidence on the application

  1. [9]
    The applicant relied on his own affidavit[13] and an affidavit of his solicitor, Tyronne Mark Thomas.[14]  The applicant was required for cross-examination and gave evidence under oath for more than an hour.  The Crown relied on an affidavit of one of the applicant’s former solicitors, David Svoboda,[15] and an affidavit of a legal support officer from the Office of the Director of Public Prosecutions, Thomas James Connolly.[16]  Some of these affidavits exhibited documents.  Each party filed a written outline of submissions. 
  2. [10]
    No objection was taken to any of this material, including the oral evidence of the applicant. The following is a chronological summary of the evidence adduced.    
  3. [11]
    On 29 August 2016, at about 11:00 pm, the applicant and Bethelia Roseabell Bunga Stewart were apprehended by police.  They were in a Mazda CX5 at the Coles Express service station at Coochin Creek.  The car had been stolen on 6 or 7 August 2016.  The applicant accepts that he stole it.[17]  
  4. [12]
    In the car, the police located two bags.  One contained a set of scales and other items owned by the applicant.  He accepts that the scales were his property.  It is alleged that in the second bag, concealed within a sock, police located three clear plastic bags containing a white crystalline substance.  It is alleged that, on analysis, the substance was found to contain a commercial quantity of methylamphetamine.[18] 
  5. [13]
    At the scene, the applicant denied any knowledge of the substance in the second bag and asserted that Ms Stewart had previously had “gear”.  Ms Stewart denied any knowledge of the substance. 
  6. [14]
    The following day, 30 August 2016, Ms Stewart gave a signed statement to the investigating officers.  In it, she accepted that the second bag was hers, but denied any detailed knowledge of the drugs found within it. Ms Stewart identified the crystalline substance as the property of the applicant.  She stated that the applicant had given the drugs to her to hide in her bag, and she had done so.   
  7. [15]
    The applicant and Ms Stewart were charged with possession of dangerous drugs and remained in custody until released on bail in December 2016. 
  8. [16]
    The applicant then attended a residential rehabilitation centre.  He was discharged in January 2017.
  9. [17]
    The applicant later told the police that he and Ms Stewart had known each other for about 20 years, having attended the same high school.  They had been seeing each other in a relationship for a period of months, until they were arrested on 29 August 2016.  He said he had been to Ms Stewart’s house at the start of 2017 “when I picked the rest of my stuff up”.  He said he packed up and left, moving to Queanbeyan in New South Wales.  There he took up work with Australia Post and formed a relationship with a new partner. 
  10. [18]
    On 10 February 2017, the applicant and Ms Stewart were committed for trial for possession of a commercial quantity of a dangerous drug,[19] possession of scales used in connection with the possession of a commercial quantity of a dangerous drug and stealing a motor vehicle.   The applicant was granted bail from that date on an undertaking that included that he “shall have no contact whatsoever either directly or indirectly” with his co-accused Ms Stewart. 
  11. [19]
    Between 9 February 2017 and 9 May 2017, the applicant sent a number of text messages to Ms Stewart.  In them he requested and then insisted that she sign a declaration or an affidavit to the effect that the drugs found in the second bag were hers and not his property.  Each of these contacts was a breach of the applicant’s bail conditions.[20]   
  12. [20]
    Later, when interviewed about these communications, the applicant recalled telephone conversations with Ms Stewart in February or March 2017, which he described in these terms:

“Just in regards to her doing the right thing, like why am I getting charged for something that’s you. That’s why I said, do it, like you gotta do what’s right basically, that’s all I said to her … Like put your hand up for it.

Just, yeah.  Just basically can you do what’s right and it said, ‘cause the court said that she needed to put that in and like a stat dec or an affidavit or a declaration or some-, I don’t know what any of it was …

Yeah, I’ve basically, I don’t know what it, if it had to be an affidavit or a stat, I didn’t know anything about that procedure or that thing.  I just said can you do this, make this right so it goes away for me.” 

  1. [21]
    On 15 February 2017, Ms Stewart made a statutory declaration before a justice of the peace at Richlands.  In it she declared:

“I am the owner of the bags containing the crystal line substance and was in total control of these items.  Prior and during meeting with the passenger of the vehicle, I placed the items in a sock and in my bag then placed it behind the drivers seat along with my handbag.  Before driving to my destination Troy Fraser did not own or have any knowledge of any drugs in the vehicle.  Nor had any reason to suspect any drugs being present as I had kept the drugs a secret from him.  He had no ownership knowledge or control of any drugs in the vehicle.  Nor were they for his use or to benefit him at anytime in anyway.  I take full & sole responsibility of the criminal and charges pending in this court case.”

  1. [22]
    The copy of this statutory declaration exhibited to Mr Connolly’s affidavit bears facsimile transmission notations, indicating it was sent by or to the office of Legal Aid Queensland on 14 March 2017 at 12:36 pm. 
  2. [23]
    On 8 May 2017, the applicant called Ms Stewart’s mobile telephone at 5:25 pm.  At 5:28 pm he sent a text message, “Do the affidavit” and then another, “Do the affidavit” and then a third “Write the affidavit and you won’t be harmed.”  These were followed by a voice call to Ms Stewart’s phone at 5:42 pm.  When later questioned by police about these communications, the applicant said he was drunk at the time.  He said he had the view about the possession charges that:

“I’m not getting in trouble for something that isn’t mine, man.  Bottom line of anything, I’m not getting in trouble for something that isn’t mine … So, I’m fighting it the whole way, man.”

  1. [24]
    On 2 June 2017, indictment 798/17 was presented against the applicant and Ms Stewart.  It contained four counts.  The first count alleged aggravated possession of methylamphetamine by both the applicant and Ms Stewart for the substance in the second bag.  The second count charged the applicant with unlawfully possessing a motor vehicle.  The third charged Ms Stewart with unlawfully using a motor vehicle.  The fourth charged the applicant with possessing digital scales for us in connection with possessing a dangerous drug in excess of 2.0 grams.
  2. [25]
    On 9 June 2017, Ms Stewart’s solicitors informed the legal officers for the Crown that:

“We hold instructions that the statement Ms Stewart gave to police on 30 August 2016 is inaccurate and we do not intend to rely upon it or proceed according to section 13A.  We are instructed that she panicked about the amount of drugs involved in the offence and that is why she provided that statement.  She has provided our office with a statutory declaration which reflects her instructions, please find a copy of this attached.”

A copy of the 15 February 2017 statutory declaration[21] was attached to the email. 

  1. [26]
    The Crown made enquiries about Ms Stewart’s reasons for changing her evidence. 
  2. [27]
    On 1 August 2017, the legal officer for the Crown sent an email to the applicant’s then solicitors and those acting for Ms Stewart:

“In light of Bethelia STEWART’s statutory declaration and the information provided regarding her prior statement in the below email from 9 June 2017, please find attached a replacement Indictment which I will present in the Supreme Court on Friday.  At this time, the current Indictment before the court will be discontinued.  I would greatly appreciate if all parties could please advise what their instructions will be for the mention on Friday.  Amy, I note in your earlier email you indicated you would be seeking a sentence listing.

Kelly, I am eager to know whether FRASER will be contesting the replacement Indictment.  If he is contesting the charges this trial should occur in the District Court, however if he is pleading guilty, he should be sentenced at the same time as STEWART in the Supreme Court.”

  1. [28]
    On 2 August 2017, the applicant’s then solicitors replied, advising they had “instructions to list Mr Fraser’s matter for sentence.”
  2. [29]
    On 4 August 2017, the Crown discontinued indictment 798/17[22] and presented indictment 1164/17.  The new indictment differed from the first in that only Ms Stewart was charged with the first count of possessing a dangerous drug in excess of 2.0 grams. The matter was listed for sentence on 10 November 2017, apparently with the applicant’s concurrence. 
  3. [30]
    On 20 October 2017, Ms Stewart reported to police that between 1 December 2016 and 20 October 2017 the applicant had contacted her requesting and then demanding that she provide a statutory declaration or an affidavit to the effect that the drugs found on 29 August 2016 were hers and that the applicant knew nothing about them.  Ms Stewart told police the applicant had threatened her, called her names over the telephone and had attended her home and assaulted her.  She alleged the applicant had coerced her into making the statutory declaration.  She told police he had said,

“I will cave your skull in if you don’t sign an affidavit to change your statement.  Nuh, I can’t do that or you won’t be able to sign it.” 

  1. [31]
    On 30 October 2017, Ms Stewart’s solicitor sent an email to the Crown’s legal officer regarding the email of 9 June 2017:

“Despite the below e-mail, I now have instructions that Ms Stewart has confirmed the accuracy of the statement she gave to police on 30 August 2016 and wishes to proceed by way of a 13A undertaking against Mr Fraser.  She has instructed that the statutory declaration she provided attached to the email below was provided out of fear of Mr Fraser who made threats towards her and her family.  I understand that Ms Stewart approached the Inala Police a week or two ago to provide a statement in relation to those threats and indicate her willingness to co-operate in giving evidence against Mr Fraser both in relation to the drugs and threats, however she was told she would be contacted by police and has not received any such contact.

Given that Mr Fraser and Ms Stewart’s joint sentence is listed next Friday, there is some urgency to resolving this matter. It would obviously be preferable that Ms Stewart’s sentence proceed as listed, an additional statement having been obtained from her by then. That would also mean adjourning Mr Fraser’s sentence to another date. Obviously in the interests of Ms Stewart and of the prosecution, it would be preferable that Mr Fraser not become aware of Ms Stewart’s position until after that statement has been taken. Is there anything you can do to expedite that to occur? …”

  1. [32]
    On 2 November 2017, Ms Stewart attended the Inala Police Station.  There, she played to the police recordings of voice messages and allowed the police to view text messages received on her mobile telephone.  The recordings allegedly included threats by the applicant – “what if your house burnt down?”, telling her that she was “dead” and “your cousin’s dead girl” –  left on her mobile telephone on 8 May 2017 at 5:25 pm and 5:42 pm. 
  2. [33]
    On 3 November 2017, the applicant was interviewed by police at the Richlands watch-house.  The interview was recorded and transcribed.[23]  The applicant accepted that the contents of the voice messages he left on Ms Stewart’s mobile were threatening in nature.  However, he denied that he threatened Ms Stewart about signing the statutory declaration, statement or affidavit.  He told police he was not aware of Ms Stewart’s statutory declaration “until the court, ‘til afterwards, ‘til my solicitor contacted me and told me.”  He said that was “a couple of months ago now.”  He said he learned of it from his solicitor “stating that, that a state- , ah a thing’s been put before the courts and my other charges have been dropped.”
  3. [34]
    In the police interview, the applicant spoke disparagingly of Ms Stewart, describing her as a “drug addict” and a “hood rat”.  He said Ms Stewart “can’t stand the fact that I’ve moved on [and am now] with someone [else]”.  He told police:

“I just want her out of my life.  I don’t want nothing to do with her.  She knows court’s coming up and she’s doing all this stuff because she knows I don’t want to be with her anymore.  I don’t.  She was infatuated with me.  I don’t want to be with her.”

  1. [35]
    Admitting he had contacted Ms Stewart on a number of occasions, in breach of his bail undertaking, the applicant insisted Ms Stewart had also contacted him: “But what about with her sending me one [a text message]?”  He told police “she’d ring up threatening me and threatening my family.  Like ‘cause she is wild, man.”
  2. [36]
    The police then showed the applicant three text messages Ms Stewart had alleged he had sent to her on 8 May 2017, between the two voice messages.  They were: “do the affidavit”; “do the affidavit”; and “write the affidavit and you won’t be harmed.”  Although the applicant accepted that each of the texts had been sent from a mobile telephone he had used at about that time to leave the voice messages noted at [23] above, he denied any knowledge of the text messages.  He later pleaded guilty to breach of his bail conditions by sending the text messages.     
  3. [37]
    The applicant told police his solicitor had given him information about what the court required, in terms of an affidavit or a statutory declaration, probably in about January 2017.
  4. [38]
    The 10 November 2017 sentence hearing for the applicant and Ms Stewart was vacated, in light of Ms Stewart’s allegations against the applicant. 
  5. [39]
    On 31 January 2018, following a review of the evidence about the communications between the applicant and Ms Stewart, the Crown legal officers decided to proceed with a sentencing hearing for Ms Stewart on the basis of her statement and to call Ms Stewart as a witness at the trial of the applicant.[24] 
  6. [40]
    On 20 April 2018, the applicant pleaded guilty in the Magistrates Court at Richlands to a charge that, on diverse dates between 10 February 2017 and 9 May 2017, he breached the bail condition to have no contact with Ms Stewart.  The particulars of the charge, so far as was recited before the magistrate, were that the applicant sent numerous text messages to Ms Stewart between 26 April and 8 May 2017. 
  7. [41]
    The police prosecutor offered no evidence on two other charges: threatening violence; and the use of a carriage service to menace.  They were dismissed.  Given the applicant’s criminal history,[25] the magistrate expressed the view that it may have been in the public interest to proceed with these two charges.  The police prosecutor told the court: Ms Stewart, who was the principal witness, had not responded to a notice requiring her to attend the court that day; she had been picked up by a police officer and brought to the court, where she had told police she had deleted the voice recordings and the text messages from her mobile telephone.  The police prosecutor said Ms Stewart “stayed here for a short period and then just departed the precincts of the court.”  All of this was to explain why there was, in the prosecutor’s phrase, a “sufficiency of evidence” problem. 
  8. [42]
    On 2 May 2018, Ms Stewart pleaded guilty to one count of possession of dangerous drugs and one count of unlawful use of a motor vehicle on indictment 1164/17.  She was convicted and sentenced in this court.  According to the applicant’s written submissions, Ms Stewart “was sentenced on the basis that she was carrying the drugs for the Applicant.”  
  9. [43]
    On 4 May 2018, after further consideration, the Crown withdrew indictment 1164/17 against the applicant and presented the fresh indictment 631/18.[26] 
  10. [44]
    On 7 May 2018, at about 2:30 pm, the applicant went to Ms Stewart’s home.  At this time he was still subject to his bail undertaking to have no contact with Ms Stewart.[27]  The two became involved in a verbal argument.  Ms Stewart told police that she left because the applicant was making her feel uncomfortable in her own home.   She said she returned a short time later and demanded that the applicant leave the house.  Two witnesses told police they heard Ms Stewart yell a number of times, “Get out of my house.”  They then saw: Ms Stewart try to push the applicant out the front doorway; the applicant resist, pick Ms Stewart up and throw her back into the house; and the applicant re-enter the house and slam the door behind him.  One witness called emergency services for assistance.  She then observed the applicant leave the house, yelling on his mobile telephone.  Another witness saw him walk off “carrying his arm” and then Ms Stewart walk out of the house “carrying a baseball bat”.  Police attended the scene and spoke with Ms Stewart, who admitted using a baseball bat to strike the applicant after he would not leave her house. 
  11. [45]
    Less than an hour after the altercation, police interviewed the applicant at the Princess Alexandra Hospital, where he was treated for a compound fracture injury to his left forearm.  He initially told police he had been assaulted by “Africans” with a baseball bat in a nearby park.  He later told police he had gone to Ms Stewart’s house “to collect his clothing as they had broken up a while ago.”  He said Ms Stewart had become angry with him, picked up a baseball bat she kept behind the front door, and struck him three times.  He said he did not fight back; he “just took the hits and left.”  On discharge from the hospital emergency department, he did not attend the police station to provide a formal statement.  When police contacted him by telephone about providing a statement, he told them he would come in, but again failed to do so.  Ms Stewart could not be located for a further interview.  The police investigation did not result in any charge.  
  12. [46]
    The applicant gave some evidence about the events of 7 May 2018 in his affidavit.  In particular he affirmed that:

“I had attended the residence of my co-accused [Ms Stewart] to collect my belongings that I had previously left there including clothing and other personal items.  Upon my arrival, she immediately threatened me about the court proceedings.  She said to me that if I didn’t do what she said and take responsibility of the drugs, she would kill me and would hurt my family.  I then told her I was going to leave.  As I told her this, she picked up a metal baseball bat and began hitting me with it.  She tried to hit me in the head so I put my arm up to protect myself.  She struck me in the arm and I could feel that my arm was broken.  When I fell to the ground, I put my arm up again to protect myself and she hit me in the arm again.  She then struck me in the ribs.  I managed to then get myself off the ground and leave through the front door.  As I was leaving, she said that if I told anyone it was her who possessed the drugs that she would kill me and that she would have “her boys” kill my family.  As I was walking up the street, I was very badly injured and a number of people had asked if I was ok and called the police.  I then left in an ambulance and went to the PA Hospital to have my injuries treated.”

  1. [47]
    In cross-examination, the applicant said that, before the encounter with Ms Stewart on 7 May 2018, he had “heard it off people that I know that she was out to get me if I didn’t say that it [the methylamphetamine] was all mine.”  He said he heard this “not long after when I got out” – presumably in December 2016 –  and he had “heard it in jail as well”.  He said he was traumatised by the 7 May 2018 incident and scared, which caused him to tell police on the day “that somebody else did it.”  The applicant said he did not tell his then solicitor or his then counsel about any threats made by Ms Stewart at any time before 13 November 2018, when he was due to be sentenced by the court. 
  2. [48]
    On 18 May 2018, 8 June 2018 and again on 20 June 2018, the Crown case against the applicant was reviewed, with the applicant’s legal representatives appearing.  On the third date, the matter was set down for a trial over two days commencing 3 September 2018.  Further reviews followed, including on 31 August 2018, when it was directed that the jury would not be required before 4 September 2018.
  3. [49]
    The applicant testified that in August 2018 he spoke to a cousin, who told him, “You know that she’s out to get you”[28] referring to Ms Stewart. 
  4. [50]
    On the morning of 3 September 2018, the applicant conferred with his then solicitor and counsel.  He told them he wanted a trial the next day.  Following this conference, the applicant’s counsel advised the court that the applicant would be proceeding to trial on 4 September 2018 and “there will be no need for there to be an arraignment this afternoon.” 
  5. [51]
    On 4 September 2018, the matter was called for hearing.  The hearing commenced a little late, at 10:17 am.  The applicant’s counsel apologised to the court for the short delay, and advised that, as a result of the instructions he had received from the applicant, it would not be necessary to empanel a jury.  The applicant was then arraigned.  He pleaded guilty to each of the three counts.  The allocutus was administered.  At the request of the applicant’s counsel, the matter was adjourned for a review on 7 September 2018 and the applicant’s bail was enlarged on its current terms. 
  6. [52]
    A document, dated 4 September 2018, signed by the applicant’s then solicitor and counsel, recorded his instructions to plead guilty.  It includes a notation to the effect that it was read out to the applicant.  In his oral evidence, the applicant confirmed that he gave those instructions to his legal representatives that day. 
  7. [53]
    According to the applicant’s affidavit:

“Prior to my arraignment, my legal representatives provided me with advice that the matter can proceed in one of two ways – the jury would either believe me or would either believe my co-accused.  I was advised that if my co-accused was to show up and give evidence, that my prospects of winning my trial were 50/50.  Based on this advice, coupled with the threats I was receiving, I made the decision to plead guilty.  I did not feel any pressure from my lawyers to plead guilty, I made the decision due to the threats I was receiving from my co-accused.

I felt like I had to plead guilty based on the advice of my prospects and due to my safety concerns.  I was traumatised by the threats that I was receiving.”

  1. [54]
    On 5 September 2018, the applicant, represented by his counsel, had the case listed for a sentence hearing on 13 November 2018. 
  2. [55]
    On 13 November 2018, the applicant instructed his then legal representatives he no longer wanted to plead guilty.  They withdrew at that time and the scheduled sentencing hearing did not proceed.  The same day, Legal Aid Queensland retained a new solicitor, Mr Svoboda of Anderson Fredericks Turner, to act for the applicant.
  3. [56]
    On 12 December 2018, the applicant had a conference with Mr Svoboda and new counsel.  He instructed them that he wished to change his plea from guilty to not guilty in relation to each of the charges.  Mr Svoboda then contacted the applicant’s former solicitor to obtain relevant materials, to discuss them, and to discuss the circumstances surrounding the entry of the guilty pleas.  
  4. [57]
    On 17 January 2019, the applicant’s new counsel gave advice to Mr Svoboda to the effect that counsel:

“had formed the view that our client had no prospects [of] success in relation to a change of plea application as he had experienced and respected counsel and solicitor appear for him in September 2018 and that the solicitor notes clearly indicate he was fully appraised of his options in relation to the three charges.”

  1. [58]
    On 7 February 2019, the applicant had a conference with Mr Svoboda, who read to the applicant the notes made by the former solicitor and counsel on 4 September 2018.  He advised the applicant that, on the basis of those notes and his consultation with the applicant’s new counsel, “we were of the view that he had no prospects of success in a change of plea application.”  That day, the applicant signed instructions to plead guilty to the three offences. 
  2. [59]
    On 20 February 2019, the matter was listed for a sentencing hearing on 13 May 2019. 
  3. [60]
    In his affidavit, the applicant affirmed that “at the beginning of 2019” he was “the victim of a home invasion” involving approximately five people, all wearing balaclavas and gloves.  He says they held him down and assaulted him.  One had a gun and another picked up a sword the applicant had at his home.  The applicant says he suffered a fractured eye socket.  According to the applicant, Ms Stewart was present during the home invasion and all of the “invaders” told him “that they weren’t going to let me go until I agreed to plead guilty.”  He affirmed that “They tried to steal my car keys and put me in the boot of my car.”  He says he “managed to get myself out of the hold, push them off” and get behind a bedroom door.  He says they left when he told them he would call the police.
  4. [61]
    On 10 May 2019, the applicant told Mr Svoboda, by telephone, that “he no longer wanted to plead guilty”.  Mr Svoboda reiterated his view of the prospects of success of an application.  The applicant instructed that he wished “to pursue a change of plea application and would retain private representation to do so.”  Mr Svoboda advised the applicant he would withdraw as legal representative and would inform the court on 13 May 2019. 
  5. [62]
    On 13 May 2019, Mr Svoboda and counsel sought and were given leave to withdraw. 
  6. [63]
    On 31 May 2019, the applicant appeared with his present solicitor and the matter was listed for review on 28 June 2019. 
  7. [64]
    The applicant gave evidence of a third “threat” in his affidavit, which he says occurred on 27 June 2019.  He says he was driving out of a hotel carpark in Ipswich with his cousin as a passenger, when he noticed his front tyres “were flat from being slashed.” He says he turned the vehicle to drive to a service station and was confronted by three vehicles.  He says a man exited a passenger seat in one of these cars with a gun and shot at his car.  He then drove to the service station, where he observed the three vehicles being “continuously driven past”.  His cousin called police and gave them the registration details for the three vehicles.  The applicant took a taxi home.  When he returned to the service station the next day, his car was gone.  He says he has been liaising with the police about the matter.   
  8. [65]
    On 28 June 2019, the applicant appeared with his present solicitor and the case was listed for a section 590AA hearing. 
  9. [66]
    On 31 July 2019, the applicant filed his application for a pre-trial direction setting aside the guilty pleas he entered on 4 September 2018. 
  10. [67]
    The application was heard on 15 August 2019.

Consideration of the evidence

  1. [68]
    Only one of the three “serious” incidents of threats is alleged to have occurred before the applicant pleaded on 4 September 2018.  It was the incident at Ms Stewart’s house on 7 May 2018.  The two later incidents cannot have had any operative effect on the applicant in his decision to plead guilty, because they did not occur until three or nine months after he did so.[29]  The alleged later threats are of importance only in so far as they might reinforce or undermine the applicant’s case that his guilty pleas were not freely made because of the alleged threats from Ms Stewart before 4 September 2018. 
  2. [69]
    There are three aspects of the applicant’s evidence of the alleged threats which bear upon consideration of this application.  

The applicant’s oral evidence on the matter was inherently unreliable 

  1. [70]
    First, the applicant’s oral evidence was inherently unreliable.
  2. [71]
    His evidence that on 4 September 2018 he was acting under the influence of the trauma and fear instilled by Ms Stewart’s threats, is not credible.  Until 3 September 2018, notwithstanding the alleged threats, he had maintained his not guilty pleas to all counts.  He gave no credible explanation for why the threats and alleged associated assault and injuries failed to have any effect on him until the first day of his trial, almost four months after the last of the alleged threats.
  3. [72]
    His evidence was not logical.  By 7 May 2018, Ms Stewart had pleaded guilty and been sentenced for possession of the dangerous drugs, and related charges.  She would likely be called as a Crown witness if the applicant proceeded to a trial.  Otherwise, she had little to gain from the applicant pleading guilty and little to lose from him pleading not guilty.[30]   
  4. [73]
    The applicant explained his decision on 7 February 2019 to sign instructions to proceed to sentencing on the guilty pleas by reason that he “was still traumatised from [the injuries to] my arm then.”  This was nine months after those injuries and three months after he had told his legal representatives that he wanted to withdraw his guilty pleas.  His instructions to withdraw the pleas had been mentioned in open court.  It makes no sense for the applicant to be sufficiently free of the alleged trauma on 13 November 2018 to give instructions to set aside the guilty pleas, but to be ruled by it the following February. 
  5. [74]
    According to the applicant, in the course of the 2019 home invasion, all five of the “invaders” including Ms Stewart told him “they weren’t going to let me go until I agreed to plead guilty”.  The applicant was a convicted criminal and serial breacher of undertakings.  It is difficult to accept that Ms Stewart – who had flip-flopped as to her knowledge of the drugs found in the second bag – would be satisfied with the applicant’s oral agreement to plead guilty, given under threat of imminent physical violence. 
  6. [75]
    Notwithstanding all of the alleged threats, including the “home invasion”, the applicant proceeded to instruct Mr Svoboda that he wanted to withdraw his guilty pleas. 
  7. [76]
    When he was questioned about details of the various threats, the applicant’s answers were unresponsive and evasive.  Some of his responses were deliberately theatrical.  At an early point, he paused to initiate a trembling of his left hand.  When this did not deter the cross-examiner, the applicant began to shake the whole of his body.  When this did not interrupt the flow of questions, he paused again, saying “Sorry, it’s a blur.  It’s just – remembering is just traumatising me, man.”  When the cross-examiner still did not take the hint, the applicant said angrily, “I said remembering is traumatising me.” 
  8. [77]
    The applicant’s evidence was in a number of respects inconsistent with his recollection of events at earlier times.  For example, in November 2017, he told police he had broken his bail undertaking in January 2017 by going to Ms Stewart’s house to pick up “the rest of my stuff”.  He used the same excuse to justify his “visit” on 7 May 2018, the occasion when his arm was seriously injured.

A more likely and logical conclusion to be drawn from the evidence

  1. [78]
    Secondly, there is a more likely and logical conclusion to draw from the evidence.
  2. [79]
    On 7 May 2018 it would have been logical for the applicant to think his defence to the counts he faced on indictment 631/18 could benefit from cooperation by Ms Stewart – at least to the extent of her not giving evidence against him.  He knew that, very recently on 20 April 2018, Ms Stewart had not assisted the prosecution of the two more serious charges brought together with his bail undertaking breach offence.  She had not voluntarily attended the court on that occasion and, when picked up by the police, she had told the police prosecutor she had deleted the relevant recordings from her mobile telephone and then left the court precinct.  His knowledge of Ms Stewart’s failure to cooperate with the prosecution of the charges against him in the Magistrates Court would have given him reason to hope that Ms Stewart would not appear and give evidence against him at the trial on 4 September 2018.
  3. [80]
    He also knew that the previous year she had been prepared to sign a statutory declaration exonerating him and taking full responsibility for the drugs.  He knew that, after his text and voice messages about the “affidavit”, Ms Stewart had arranged for it to be sent to the Crown.
  4. [81]
    He was well aware making contact with Ms Stewart would be yet another breach of his bail undertaking conditions.  He had breached those conditions the year before for the specific purpose of pressuring Ms Stewart to provide an affidavit or statutory declaration exonerating him from culpability for the drugs found in the stolen car.[31]  His 7 May 2018 visit to Ms Stewart at her home was more brazen than his voice and text messages, but it may have offered a way of communicating with her that did not leave the type of record his earlier mobile telephone contacts had done. 
  5. [82]
    On 4 September 2018, the applicant would have been aware of the potential benefits to be derived by him from a guilty plea, in terms of penalty, in terms of the sentence that might be imposed.  He was advised by experienced counsel and solicitors.  He had a reasonably extensive criminal record.[32]  The applicant had pleaded guilty to each of the earlier offences on his criminal record.[33]  
  6. [83]
    A more logical inference to draw from all the evidence is that the applicant decided to plead guilty when it became clear that Ms Stewart was to be called by the Crown as a witness at his trial.  The applicant confirmed his counsel advised him that, if Ms Stewart “was to show up and give evidence, that my prospects of winning my trial were 50/50”.  He also gave evidence that he “felt like I had to plead guilty based on the advice of my prospects”, in addition to the alleged threats. 

History of attempting to pervert the course of justice 

  1. [84]
    Thirdly, the applicant has a history of fabricating exculpatory evidence.
  2. [85]
    On 4 May 2015, the applicant pleaded guilty and was convicted of attempting to pervert the course of justice.  The charge involved the applicant procuring another person to enlist his sister to provide a false alibi in relation to the applicant’s involvement in the offences of extortion, assaults occasioning bodily harm, deprivation of liberty and threats, for which the applicant was then being held on remand. 
  3. [86]
    The applicant counselled the procured alibi witness on what she should say; the alibi witness then provided a three-page statement to the police.  The offence was detected because the various procuring conversations took place within the gaol and were monitored.  The applicant subsequently pleaded guilty to the relevant offences.  As the learned sentencing judge noted, “had the police not had those taped conversations, it may well be that a different outcome would have followed.”
  4. [87]
    The applicant’s history of dishonesty tends against accepting his evidence where it lacks inherent credibility, appears illogical and there is a more likely and logical conclusion open. 
  5. [88]
    This history also tends to make it more likely that the applicant’s communications with Ms Stewart, including his “visit” to her home in May 2018, were directed to persuade her to give evidence favourable to him, without regard as to the truth of that evidence.

Conclusion on the evidence

  1. [89]
    It follows that I am not satisfied on the balance of probabilities that the applicant’s guilty pleas on 4 September 2018 were induced by threats or intimidation from Ms Stewart.  Similarly, I am not satisfied that a miscarriage of justice has occurred.  In the circumstances, I am not persuaded that leave to withdraw the guilty pleas is necessary in order to avoid a miscarriage of justice.

Disposition of the application

  1. [90]
    For the reasons set out above, the application to set aside the pleas of guilty entered on 4 September 2018 is refused. 

Footnotes

[1] R v Liberti (1991) 55 A Crim R 120 at 122 (Kirby P).

[2] R v Popovic [1964] Qd R 561 at 568 (Lucas J).

[3] Meissner v The Queen (1995) 184 CLR 132 at 157 (Dawson J).

[4] [2018] QCA 360 at [8]-[14] (Sofronoff P, Morrison JA and Henry J).

[5] (2000) 112 A Crim R 142 at 143-145.

[6] This category was identified by the Full Court of the Supreme Court of Victoria in R v Murphy [1965] VR 187 at 190 (Sholl J).  See also: R v Boag (1994) 73 A Crim R 35 at 37 (Hunt CJ).

[7] The developments on the morning of 4 September 2018, to which the applicant appears to refer in this part of his evidence, are considered below.

[8] Popovic at 568.

[9] R v Inns (1974) 60 Cr App R 231 at 233 (Lawton LJ), cited with approval by Brennan, Toohey and McHugh JJ in Meissner (1995) 184 CLR 132 at 141-142.

[10] R v MacKenzie (2000) 113 A Crim R 534 at 541 [31] - 542 [32].

[11] R v Carr-Briant [1943] KB 607 at 612. 

[12] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).

[13] Affirmed on 8 August 2019 and filed on 13 August 2019.

[14] Affirmed on 12 August 2019 and filed on 13 August 2019.

[15] Affirmed on 12 August 2019 and filed on 13 August 2019.

[16] Sworn and filed on 13 August 2019.

[17] He pleaded guilty to stealing the car and, notwithstanding the generality of his application, at the hearing of this application he did not seek to alter his position in that respect. 

[18] The Crown case is that the bags contained a total of 58.975 grams of methylamphetamine. 

[19] In excess of 2 grams of methylamphetamine.

[20] The applicant was convicted of these breaches of bail conditions in the Magistrates Court at Richlands on 20 April 2018.  See [40] below.  A conviction was recorded and he was sentenced to five months imprisonment, suspended for five years.

[21] See [21] above.

[22] The four count indictment presented on 2 June 2017.

[23] The transcript was at pp 8-47 of exhibit A to Mr Connolly’s affidavit.

[24] The material before the court does not reveal how the Crown came to the view that the applicant was proceeding to trial, but it was a logical assumption to make.

[25] At this time it included breaches of community service orders, breach of domestic and family violence protection orders, extortion with intent to gain a benefit with a threat of detriment, assault, deprivation of liberty and attempting to pervert the course of justice.

[26] This is the indictment containing the three count s to which the applicant pleaded guilty on 4 September 2018; those pleas being the subject of this application. 

[27] Only 17 days before he had been convicted of breaching this condition by his communications with Ms Stewart in 2017.

[28] In his oral evidence on 15 August 2019. 

[29] The alleged later threats could be a basis for explaining the applicant’s conduct after “the beginning of 2019” allowing the matter to proceed as if he would maintain his guilty pleas. 

[30] For the same reason, it is inherently unlikely that Ms Stewart (and four others) would stage a “home invasion” in early 2019 or that she would arrange for the applicant’s car to be shot at on 27 June 2019.

[31] The applicant also had convictions for breaches of bail undertakings, breaches of probation orders, breaches of recognisances, breach of community service orders, failures to appear in accordance with an undertaking, and for breaches of orders made under the Domestic and Family Violence Prevention Act (six in 2011 and two in 2012). 

[32] It commenced on 3 April 2001, when at 18 years of age, he was brought before the Magistrates Court at Mount Isa on charges of assaults occasioning bodily harm, wilful damage and obstruct police officer.  He has been before the lower courts for numerous breaches of bail undertakings, breaches of probation orders, breaches of recognisances, breach of community service orders, failures to appear in accordance with an undertaking, wilful damage, and break and enter premises.  He has convictions for breaches of orders made under the Domestic and Family Violence Prevention Act (six in 2011 and two in 2012), extortion with intent to gain a benefit with threat of detriment, assaults occasioning bodily harm, deprivation of liberty, trespass, stealing, as well as possession of a dangerous drug and possession of things for use in commission of that crime.

[33] Also, on 10 September 2018, he was convicted on his own guilty plea for possession of a knife in a public place.  That was less than a week after he was arraigned and pleaded guilty to the present indictable offences.

Close

Editorial Notes

  • Published Case Name:

    R v Fraser

  • Shortened Case Name:

    R v Fraser

  • MNC:

    [2019] QSCPR 8

  • Court:

    QSCPR

  • Judge(s):

    Bradley J

  • Date:

    12 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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