R v Weribone[2002] QCA 440

SUPREME COURT OF QUEENSLAND 

DAVIES JA:  On 3 December 2001 the appellant pleaded not guilty to 13 counts of sexual misconduct against a young woman.  The first eight of them alleged acts occurring at a time when the complainant was under 16 and included a charge of maintaining a sexual relationship with a child under 16.  Five of them alleged indecent dealing with circumstances of aggravation that the child was under 12 and the appellant was her guardian, one of them alleged exposing the child when she was under 12 to an indecent film and one of them alleged attempted rape.  The other five counts involved conduct against the young woman after she had turned 16.  They involved three of indecent assault and two of rape.

The trial proceeded but on the third day, after some discussion between the Crown Prosecutor and the appellant's counsel, the appellant was re-indicted upon only the last five counts.  He pleaded guilty to those counts and was duly sentenced.  He now appeals against the convictions on those counts, notwithstanding that they were entered, in each case, on his own plea.

It is plain that the withdrawal of the original indictment and the presentation of an indictment charging only the last five counts was a result of a discussion between the Crown Prosecutor and the appellant's then counsel Mr Davies after Mr Davies had tendered advice to the appellant to plead guilty to those five counts and the appellant had agreed to do so.  I will return later to the circumstances in which that occurred for that is the main basis upon which the appellant now seeks to have his convictions set aside notwithstanding his pleas.  Indeed his sole ground of appeal is that he was pressured into changing his pleas from not guilty to guilty by Mr Davies and members of his family.  But first I should refer to the last count on the indictment for it is evidence of the appellant's wife on that count which is central to his appeal. 

The offence was alleged to have occurred on 30 September 2000.  The complainant said she was in bed asleep.  The appellant woke her up and got into bed with her.  He was intoxicated.  She tried to get out of the bed but he pulled her back down.  He removed her pants.  He then positioned her so that he could lick her vagina.  He did so for approximately 5 minutes.  She tried to scream but he told her to be quiet and put his hand over her mouth.  She heard a noise.  He sat up for a short time but then continued licking her vagina.  The lights to the room were then turned on and the appellant's wife walked into the room.  Both the appellant and the complainant jumped up and she, the complainant, climbed out of the window, went to the neighbour's house and the police were called.

The appellant's wife, in her statement to the police, stated that she heard the appellant in the complainant's room.  As she approached the room she could hear the complainant crying as if she was being hurt.  She heard the appellant say "Shut up."  She turned on the light and the appellant jumped up.  The complainant also jumped up and left the room.  The appellant immediately commenced assaulting her and saying that it was all her fault.

In a subsequent statement to the police the appellant's wife said that the appellant had provided her with a document detailing a false version of what she should say she had witnessed on 30 September, being in question and answer form, the answers to which she was to learn.  She was unable to produce a copy of this document, saying that she could not remember whether or not she had thrown out the copies.

However on 3 December 2001, on the first day of the trial, a search warrant was executed on the appellant's residence and copies of this document were obtained.  On the following day the appellant's wife was questioned on a voir dire during the course of which this document was tendered.  The effect of her evidence was as I have indicated.

During the voir dire the appellant's wife also implied that she could give further relevant evidence.  She was not invited to by Mr Davies, the appellant's counsel, but Mr Pointing, the Crown Prosecutor, later informed Mr Davies that this further evidence was that, notwithstanding the appellant's denials of any touching or inappropriate behaviour towards the complainant, he told her, in the presence of his father, that on the night in question he had heard a noise coming from the downstairs sleeping area of the complainant, he had gone to her room and he had seen a male jumping out of the window.  Having confronted the complainant he then placed a finger in her vagina to check if she was still a virgin.  It was then he said that his wife entered the room and confronted him.  This was, of course, additional inculpatory evidence against the appellant inconsistent with the exculpatory version contained in the question and answer document. 

In those circumstances it is not surprising that Mr Davies sought instructions from the appellant to see what best could be achieved by a plea of guilty.  He then had a conference with the appellant in the presence of his father and Ms Silcox, the appellant's aunt.  There were, it seems, two such conferences.

Affidavits as to what took place have been sworn to by Mr Davies, the appellant's father, and Ms Silcox.  The appellant himself has not sworn evidence.  However in a document described as an outline of submission, put before this Court for the first time today, he has sought to state facts which are inconsistent not only with the evidence sworn to by Mr Davies but also the evidence which he himself has adduced from his father and his aunt, Ms Silcox.  To the extent that he has sought in this way to try to put evidence before the Court, I would reject it.

Mr Davies said that he spent a considerable time discussing the situation with the appellant on the basis that the Crown would proceed with a lesser number of charges and would seek a head sentence of six years.  As a result of that conversation Mr Davies said the appellant made a deliberate, careful and informed choice which reflected the reality of what Mr Davies had said, correctly, was a strong Crown case.  Mr Davies told him that if the case went to trial on all charges he could have expected a sentence of up to eight or nine years without any recommendation.  I have no doubt that that was correct.  Of some significance also is the fact that, after the appellant was convicted and sentenced he sought to engage Mr Davies to represent him in another unrelated matter.  It was only when Mr Davies saw the grounds of appeal that he explained to the appellant that he could no longer act for him.

The affidavits signed by the appellant's father and Ms Silcox are disturbing in that, notwithstanding that they each contain nine substantial paragraphs, they are identical, raising immediate concern as to their credibility.  Only the names have been changed.  Nevertheless, with only one significant difference, they appear to support rather than contradict the evidence of Mr Davies.  The difference is that, according to their version, Mr Davies said that if the appellant were convicted of only one charge after a trial he could get ten years imprisonment.  I think that would be a surprising statement from a barrister and I think it unlikely that he made it.  What is more likely, as appears from the document which the appellant himself signed, is that Mr Davies told him that he might face a further charge in attempting to pervert the course of justice and in that context Mr Davies may well have said that this sentence would be cumulative upon the other sentence, in which case the total may well have been more than ten years imprisonment.  Again, I have no doubt that that would have been right.

The appellant's father and Ms Silcox also said in their affidavits that the appellant explained the question and answer document, or attempted to do so, by saying that he had prepared it merely to help his wife when she gave evidence at his trial because she had expressed concern as to how she would otherwise cope in Court.  The appellant may well have said this, but it is self-evident that this explanation is so incredible as to be most unlikely to be believed by a jury.

In the document which the appellant signed, he said that he wished to change his plea to guilty on the basis of the charges which would proceed knowing that the prosecutor would seek a sentence of six years imprisonment with no recommendation.  The document said that he was making a decision of his own choice and that no-one had pressured him to make it.

It is plain from the totality of this evidence, even if one were to accept that of the appellant's father and Ms Silcox, that no improper pressure was put upon the appellant to plead guilty.  On the contrary, he did so after careful, sensible and it seems to me to be correct advice.  The case against him was, as I have said, a strong one and had he been convicted after a trial of all or even most of the offences of which he was originally charged he would have received a substantially greater sentence than he did with the serious added risk as he had been told of an additional cumulative sentence for the charge of attempting to divert the course of justice.

It is unclear whether in the light of the restricted ground of appeal the appellant relies on the other affidavits which were by Wayne Weribone, Barbara Weribone and Shannon Weribone.  However, in case he has, I will say something about each of them.

Wayne Weribone is the appellant's brother.  His affidavit deposes to an argument which apparently took place between the appellant's wife and his own wife on New Year's Eve 2001 after the appellant had been convicted.  According to him the argument was about why she gave evidence at the trial especially with respect to the questionnaire which was damaging to the appellant's case.  According to him the appellant's wife said that she did this because she did not want to go to gaol.  No doubt, if she had been a party to perversion of the course of justice she may well have gone to gaol.  The evidence in my view, in any event, is irrelevant.

Barbara Weribone is the appellant's step-mother.  She swore that after the events of 30 September 2000 the appellant's wife asked her if she would take the complainant to stay with her for a week or two.  She agreed to do so and the complainant arrived.  However because her partner was concerned that the complainant would make complaints against him of the same kind as she had made against the appellant she asked the complainant to leave after some time.  Again the evidence on its face is plainly irrelevant.

Shannon Weribone is the appellant's niece.  She swore that she and the complainant were close cousins and often talked.  She said that the complainant never complained to her about the appellant touching her in any indecent way but did say to her that she felt like running away and would do anything to get the appellant sent away even if it meant putting him in gaol.

This is of no relevance to the ground of appeal which has been argued.  It may have been relevant at a trial either for or against the appellant, depending on its proper context.  However no further explanation is given about this or as to why Shannon Weribone did not speak to the police or the appellant's lawyer before the trial.  More importantly the evidence had not been tested for credibility and it is impossible to say whether it is cogent.  I certainly could not be satisfied that, if believed, it would be likely to lead to an acquittal of the appellant of the offences of which he pleaded guilty.  I would therefore reject it also. 

In my opinion there is no substance in an appeal and I would therefore dismiss it.

THE PRESIDENT:  I agree.

HOLMES J:  I agree.

THE PRESIDENT:  The order is the appeal against conviction is dismissed.