SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree that the appellant’s appeal against his conviction to withdraw his plea of guilty should be dismissed and his application for leave to appeal against his sentence refused for the reasons given by Jerrard JA. 

2. DAVIES JA:  I agree with the reasons for judgment of Jerrard JA and with the orders he proposes.

3. JERRARD JA:  On 20 November 2003 Bradley Gearn pleaded guilty to an indictment charging that on 9 November 2001 at Eagleby in the State of Queensland he unlawfully and indecently assaulted B.  Mr Gearn was sentenced to six months imprisonment entirely suspended with an operational period of 15 months.  On 11 December 2003 he applied for leave to withdraw that plea of guilty and to “have the matter heard again”, which should be understood as an application to change that plea to not guilty and to be brought to trial, should the Crown so choose. 

4. The grounds of that application are that he had wanted to plead not guilty; his barrister had told him “on the day” that he had no case and that if he pleaded not guilty he would lose and go to prison; that the judge would “see through” the victim impact statement, whereas the judge referred when sentencing Mr Gearn to the effect of the offence on the complainant; and that Mr Gearn had had “no intent to assault the victim, I felt he was a consenting party”. That last point raises the possibility of the applicant having had available to him the benefit of a possible defence of honest and reasonable mistake. That possible defence is enlarged upon in the applicant’s written outline of argument.

The Prosecution Submissions

5. The circumstances of the offence described by the Crown Prosecutor to the learned sentencing judge were that B was living as a flatmate with O, who was a friend of Mr Gearn. On the evening of 8 November 2001 O and Mr Gearn began drinking alcohol, and B came home to the flat and commenced to drink alcohol with them. The three men then went out drinking at a hotel and returned to B’s residence at 2.00a.m. in the morning. B fell asleep on a couch in the lounge room, upon which it had been intended Mr Gearn would sleep. Mr Gearn went to sleep on the floor adjacent to the couch. The incident the subject of the charge occurred at or just prior to 3.00a.m. on 9 November 2001.

6. The Crown particularised the assault it relied on as being that while B was asleep on that couch, Mr Gearn placed his hand on B’s crotch, pulled the fly on B’s jeans, and felt B’s genitals both through his underwear and by actually touching B’s penis. Prior to that touching there was “some pressure and rubbing applied by (Mr Gearn) to the outside of the clothing.”^[1]

7. The Crown informed the judge that the incident stopped when B was not positively responsive, and that it would seem that very soon after that B left that room and went to a bedroom. The victim impact statement about which Mr Gearn complains was described by the Crown as showing some degree of emotional reticence in B as a result of the incident, and in particular that B had difficulty in talking about the matter with his wife. Although that statement did not describe the marriage as having ended, the Crown Prosecutor did, submitting that the break up of the marriage was at least in some part attributable to the effects of the incident.

8. The prosecutor specified, in reference to some sentences in other matters supplied to the learned sentencing judge, that in one of them there was an aggravating feature of the existence of oral sex, which the Crown was not relying on in the charge alleged against Mr Gearn. This is relevant in that Mr Gearn’s written outline of argument asserts that the “charges are based on a false and unfounded accusation of oral interference”; that statement misunderstands what occurred. The prosecution did not allege that Mr Gearn performed oral sex upon B.

The submissions made on Mr Gearn’s behalf

9. Mr Gearn’s counsel informed the court that counsel’s first opportunity to speak with Mr Gearn had been that morning, and that was the first real opportunity counsel had had to speak with the Crown Prosecutor about the matter. Mr Gearn’s counsel made the point that Mr Gearn had not been spoken to by police until 15 August 2002, some 10 months after the incident, and that Mr Gearn had made what his counsel described as “frank admissions” about what had occurred on that night to the police.

10. Counsel submitted that Mr Gearn had mistakenly understood that the complainant might be interested in some sort of homosexual activity, and that ultimately that belief had led to the incident occurring. The submission informed the court that Mr Gearn now accepted that he was mistaken and had pleaded guilty. Counsel reminded the judge that Mr Gearn had desisted of his own volition when it was apparent that B was not responding to Mr Gearn’s advances, and counsel submitted that his client’s conduct was at the lowest end of the scale as far as the offence of indecent assault was concerned.

11. The information supplied to the learned judge by the Crown Prosecutor had clearly described B being touched in an indecent manner while B was asleep, and by inference B awakening to realise that this was occurring. The submission made to the judge by Mr Gearn’s counsel did not dispute that Mr Gearn had so touched the body of a sleeping man, who then awoke. Mr Gearn’s written outline of argument repeats that B went straight to sleep on the couch (making the point that B knew “full well” that that was Mr Gearn's intended bed), and asserts that O and Mr Gearn had tried to wake B up to send him to his own bed, but had failed to do so. Mr Gearn’s outline describes how he then went to sleep and woke with B’s foot “in my side” an hour later.

12. Mr Gearn’s outline then describes how he had no intent to assault any person, and that the “alleged incident” would not have occurred had it not been for B’s going straight to Mr Gearn’s bed at 2.00a.m. and Mr Gearn being awoken by B’s foot, and B’s obvious arousal through sound and physical actions. That outline does not challenge the Crown’s description to the learned sentencing judge that Mr Gearn touched or stroked B when B was asleep and incapable of consenting.

13. After presenting Mr Gearn’s version of the incident as described, Mr Gearn’s counsel then provided Mr Gearn’s account in explanation of Mr Gearn’s prior convictions. Those convictions included ones for:

• unlawfully using a motor vehicle (committed in August 1991), explained as being a joy ride on a motor cycle when he was 18 and after consuming alcohol;

• receiving stolen property (committed between 1 April 1995 and 22 May 1995), explained as being the possession of a street sign found in his flat by police officers who were searching it;

• assault occasioning bodily harm (committed on 17 September 1995), explained as an incident which occurred when B became angry with an attendant at an all night service station who was slow in serving Mr Gearn, and whom Mr Gearn punched.

Mr Gearn has also been convicted on three separate occasions of offences of possession of dangerous drugs.  The relevance of these convictions is simply that one of Mr Gearn’s complaints in his written outline is that a criminal conviction not set aside on this application will prevent any possible chance of Mr Gearn fulfilling his commitment to himself of being a productive and contributing member of society.  The problem with that submission is that he already has three convictions for possessing dangerous drugs, and convictions recorded on the receiving and assault occasioning bodily harm charges.

14. Mr Gearn’s counsel also described Mr Gearn’s quite impressive work history to the sentencing judge and the fact of his then employment in a responsible position. His counsel then made submissions which sought to distinguish between the offence committed by Mr Gearn and those committed in other matters to which the Crown Prosecutor had referred the court. After the judge had retired to consider the sentence, and on his return, Mr Gearn’s counsel provided the judge with a reference which counsel had earlier overlooked. That reference is at AR 13; its author, his flatmate, describes in it how the author has no knowledge of any other inappropriate approaches made by Mr Gearn to any male person. Although Mr Gearn complains of the fact that exhibiting this reference was originally overlooked by his counsel, I do not consider that that minor omission could possibly have made any difference to the sentence actually imposed.

Why Mr Gearn Pleaded Guilty

15. Mr Gearn’s written outline complains that on the day he pleaded guilty he was bullied “through scare tactics to not go to trial”, that he was told that the fact that he touched B with his hand and had admitted to doing that meant that there was no chance of his staying out of jail, and that while that was contrary to previous legal advice he had received and while he wanted to plead not guilty, that plea was not a feasible option in light of the consideration that his barrister had told him he would go to jail if he pleaded not guilty. That outline assumes a conviction would occur after a trial.

16. His counsel has provided the court with an affidavit. It describes counsel having advised Mr Gearn that if he was convicted after a trial of an offence of assault with a circumstance of aggravation, (that being that Mr Gearn had performed oral sex on the sleeping complainant), it was likely that an actual sentence of imprisonment would be imposed. It is difficult to disagree with that advice. The affidavit describes how counsel discussed with Mr Gearn a number of the statements Mr Gearn had made in his interview with the police, and that Mr Gearn was advised that the Crown Prosecutor had asked counsel if there was any “middle ground”, which resulted in discussion of a plea of guilty to assault without that circumstance of aggravation. The affidavit records that counsel advised Mr Gearn that if he pleaded guilty to such a lesser charge counsel was confident that a sentence of actual imprisonment would not be imposed. In fact none was.

17. The affidavit denies that Mr Gearn was threatened at any time or placed under any undue pressure. It asserts that it was made clear to Mr Gearn that the choice was his and that counsel would act on Mr Gearn’s instruction. The discussions involved sentences imposed in comparable cases and whether or not Mr Gearn should give evidence if a trial did take place, and counsel deposes that in that discussion Mr Gearn actively sought as much information as possible upon which to make his final decision. That decision was to plead guilty, and Mr Gearn signed hand written instructions that he would plead guilty to a charge of sexual assault simpliciter. Those are exhibited to an affidavit by Mr Gearn’s solicitor, which supports the barrister’s affidavit in all respects. Those written instructions specified what Mr Gearn acknowledged by a plea of guilty, and that he waived the right to a trial because of the risk of a jail sentence if convicted of the aggravated offence.

18. The solicitor’s affidavit records that the barrister made the point that the statements Mr Gearn made to the police would leave it open to a jury to convict on at least the lesser charge. It also annexes a file note of the conference held with counsel. Those notes record that Mr Gearn was told that in a trial a lot would depend on B’s evidence, that the barrister was not confident of an acquittal, and that Mr Gearn elected to plead guilty to the lesser charge to avoid the risk of imprisonment. It also records discussion of Mr Gearn’s admissions and statements when interviewed. Those statements included that B had fallen asleep on the couch (Page 7 L 18); that B was then just pretending to be asleep (Page 7 L 32); that when touching B on his crotch, Mr Gearn was wanting him to wake up (Page 18 L 40); that when he stopped touching him B went back to sleep (Page 19 L 33); that when he was being touched B was “sort of awake but sort of not” (Page 13 L 26). Mr Gearn also said he thought he had permission to touch B because B’s falling asleep on the couch was like “jumping in my bed basically.” (Page 26 L 40). Those statements do not describe reasonable grounds for a belief B was awake and consenting to being touched.

19. This court has previously held that an applicant seeking leave to withdraw a plea of guilty bears the onus of establishing that a miscarriage of justice took place when the court sentencing that applicant accepted and acted on a plea of guilty by convicting the applicant. The essential question has been said to be whether the entering of the plea of guilty should be regarded, in all the circumstances, as attended by such unfairness as to warrant a new trial.^[2]  Further, and in accordance with the decision of the High Court in Meissner v R (1995) 184 CLR 132, this court has accepted that there is no miscarriage of justice if a court acts on a plea of guilty entered in open court by a person of full age and apparently of sound mind and understanding who enters that plea in the exercise of a free choice in the interest of the person entering the plea, even if that person is not in truth guilty of the offence.  However, a plea of guilty which is the product of intimidation, duress, improper pressure or improper inducement or harassment is not a free and voluntary plea on which a court may properly act.^[3]  The proposition described in Gadaloff as the essential question has been repeated in R v Lewis ex parte A-G (Qld) [2003] QCA 133 at [14]; this court also approved in R v MacKenzie [2000] QCA 324 and R v O [2003] QCA 446 the proposition that to succeed in an application to set aside a conviction consequent upon a plea of guilty an applicant has to demonstrate that a miscarriage of justice has occurred.^[4]

20. In this application Mr Gearn falls a very long way short of establishing that his plea of guilty was the product of intimidation, duress, improper pressure or inducement, or some other variety of harassment; in other words, that it is not a free and voluntary plea made in the exercise of a free choice in the interest of the person entering that plea. In fact, the opposite is established. This is because apart from the absence of any reference by Mr Gearn to the alleged aggravating circumstance of oral sex being performed, there is little real difference between Mr Gearn’s account of what he discussed with his barrister and the advice he acted upon, and the barrister’s account of that same conversation. The difference lies in counsel’s account of having described the significance of a conviction of an offence with the circumstance of aggravation following a trial, compared to the probable result of a plea of guilty to a lesser charge. Mr Gearn’s written outline describes his reason for considering that a plea of not guilty was not a feasible option as being the very probable prospect of jail if that was the plea; what the barrister’s affidavit makes clear is that was the prospect if Mr Gearn was convicted of the aggravated offence following a trial. 

21. In MacKenzie, McPherson JA cited from the judgments in Meissner, reminding that a lawyer’s reasoning with a person charged, by pointing out the advantages of pleading guilty and the disadvantages of not doing so, is not improper; and that a degree of pressure in so doing may be “quite legitimate” if exerted by an accused person’s own lawyer who is acting solely in the interest of that accused person.  All of this seems apposite here, save that there is no evidence of any pressure being applied to Mr Gearn beyond describing to him the likely consequences of a conviction on a count with the circumstance of aggravation after a trial, and the chances of such a conviction.  Mr Gearn is therefore a very good example - particularly on his own account - of a person of mature understanding who pleaded guilty in the exercise of a free choice and in his own interests.

22. What Mr Gearn’s complaints overlook and what is clearly relevant is that on a trial it would have been open to a jury to conclude that Mr Gearn had knowingly caressed a sleeping man, which conduct would be an assault, irrespective of any honest (or reasonable) belief, expectation, or hope that Mr Gearn had that that man would consent to further caressing, or other acts, when the man awoke. While asleep B could not and did not consent to what Mr Gearn was doing, which a jury could find was unlawfully and indecently assaulting B.

23. I consider that Mr Gearn has not discharged the onus on him of showing that a miscarriage of justice resulted from the acceptance of his plea of guilty and his appeal against his conviction should be dismissed.

24. Mr Gearn also applied for leave to appeal against sentence. This application was not pursued in his written or oral submissions. It follows that the application for leave to appeal against sentence should be refused.