SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the President’s reasons for judgment.  I agree with the orders proposed by Her Honour, and with her reasons.

[2]  McMURDO P:  Gregory Stephen Petersen pleaded guilty in the Supreme Court at Bundaberg on 3 March 2008 to one count of producing a dangerous drug (cannabis) in excess of 500 grams and one count of possessing a motorcycle used in the commission of a crime.  He was sentenced to an effective term of three years imprisonment suspended after 12 months with an operational period of four years.  On 18 August 2008, about four and a half months late, he filed an application for an extension of time to appeal against his conviction and for leave to appeal against his sentence.

[3] He is now self-represented.  In his application he states:

"I need or require a properly educated lawyer to help me please!! with these matters.

I have been waiting on legal aid for their reply but my mail got misplaced (follow up correspondence) found by Tim Harland (legal aid grants/appeals) letters to federal police and legal aid were stolen/misplaced @ A.G.C.C. as well as my letter to C.M.C. (dated May 20-31 approx) by a prison officer named Darren.  I have been transferred + my legal papers + dates of court appearance & access to legal representatives + appeal forms denied on many occasions.  I also was assaulted + concussed @ MCC on 5-13 + 14 April and could not access duty solicitor on many occasions I have been transferred on 28th/4 to 2/6/08 + could not access my property or ph due to my  acc + property got lost.  Transferred to WCC 7/7 to 21/7/08 for medical reasons.  No papers with me but Tim Harland was called to file my papers on ombudsman Peter Jenkins all and all I have been severely hampered to get any legal appeals going/instituted at all.  Please accept this request as I am not guilty of what I am charged convicted of."

[4] In his proposed notice of appeal he states:

"I was in a lot of pain from my spinal injuries and impacted/decayed teeth and I was unsound of mind at the time of my trial due to my stress, sleep disorder, anxiety, depression and withdrawal of my medication for insomnia, depression, anxiety and pain and post natal depression as well as an incompetent counsel of my barrister + lawyer and as such was not represented properly and maybe unlawfully by such.  The judge has erred in her summation at the end of the trial as (according to court transcript) I pleaded guilty to possession of a motorcycle not possess drugs.  I did not realise I was pleading guilty at all as I want to plead not guilty the whole time.  I have witnesses to support my plea of not guilty and I should also have the investigative reports of the Federal Police & CMC as well by the time this appeal (and or retrial) as I wish to have this matter brought before the appeals court & a retrial on/with such witnesses.  The judge has erred with her summation and as such a gross miscarriage of justice has happened and my sentence was manifestly excessive."

[5] These documents set out the gist of his arguments in support of his application to extend time.  Before returning to them and to better understand his contentions, it is necessary to describe in some detail the proceedings in the primary court.

[6] Mr Petersen was charged jointly with Brad Love, Steven Campbell and Michael Watson.  On Tuesday, 26 February 2008, they were each arraigned on one count of producing a dangerous drug (cannabis) in excess of 500 grams.  Love, Campbell and Watson each pleaded guilty.  Mr Petersen pleaded not guilty to that count and to the additional count of possessing a motorcycle used in the commission of a crime.  The jury in Mr Petersen's trial was then empanelled but stood down so that Watson could be sentenced.  He was to give evidence in the prosecution case against Mr Petersen.  The sentencing of Campbell and Love, who were not to be called in Mr Petersen's trial, was adjourned until the completion of the trial.  Mr Petersen was then arraigned again, this time in front of the jury panel.  He again pleaded not guilty to both counts.  The jury was empanelled.  After some formalities, the jury was sent away until midday for the barristers to argue legal matters before the judge.  The prosecutor and defence counsel then requested an adjournment so that they could have discussions to narrow down the issues at trial. 

[7] The court resumed at 2.58 pm, apparently in the absence of the jury.  Defence counsel, Mr L Hastie, told the judge that there had been an incident outside the court concerning an alleged assault by Mr Petersen on Watson.  Mr Hastie said that he had discussed the matter with the President of the Bar Association of Queensland and, acting on that advice, had asked Mr Petersen to give signed instructions to the effect that he knew his legal representatives would be required in the future to give evidence against him in the prosecution of the incident involving Watson.  Mr Petersen refused to give those signed instructions.  For that reason, Mr Petersen's legal representatives sought the judge's leave to withdraw.  Mr Petersen said in court: "I don't want you to withdraw.  I'd rather you still be my solicitor." 

[8] Mr Petersen told the judge:

"I don't understand the instructions this man has been sending to me.  I really don't, you know, I'm half – half out of me mind with pain at the moment.  I need me pain killers and medication and, you know, what I mean these guys are putting stuff to me that I've got to understand straight away, you know."

[9] The judge asked Mr Petersen if he was prepared to sign the requested instructions so that his lawyers could continue to act for him.  Mr Hastie responded that he would seek permission to withdraw in any case: he was concerned that the issue might provide a ground of appeal.  He said that he no longer felt confident in representing Mr Petersen.  This was because Mr Petersen had indicated that he was not happy with his legal representation and wanted to see another solicitor.  Mr Hastie told the judge that he read to Mr Petersen the documents containing the instructions he was seeking so that he could continue to act for him; Mr Petersen immediately said: "No, fellows, I'm not happy with you.  I want to see another solicitor at 5 o'clock and if she tells me to plead guilty I shall."  The judge then gave leave to Mr Hastie and his instructing solicitor to withdraw.

[10]  The judge told Mr Petersen that he intended to continue with the trial even though Mr Petersen was unrepresented.  The judge had his associate re-arraign Mr Petersen on the count of producing a dangerous drug.  The following exchange occurred:

"ACCUSED PETERSEN:  How do I reserve my plea until I receive more legal representation?

HIS HONOUR:  Well, you say not guilty. 

ACCUSED PETERSEN:  Not guilty, your Honour.

HIS HONOUR:  OK.  I take that as a plea of not guilty."

Mr Petersen also pleaded not guilty to the count of possession of a motorcycle used in connection with the commission of the crime of producing a dangerous drug.

[11]  A solicitor, Ms Dubow, then appeared amicus curiae.  She confirmed that Mr Petersen's wife had made an appointment for Mr Petersen to see her at 5.00 pm.  The prosecutor arranged for the material on which he was relying to be sent to Ms Dubow.  The judge adjourned the trial until 10.00 am the next morning and revoked Mr Petersen's bail.

[12]  The next day, Wednesday, 27 February 2008, the court resumed at 10.12 am, again, presumably, in the absence of the jury.  Mr Petersen was represented by Ms Dubow.  She raised her concern about the trial continuing before the empanelled jury because of the potential impact of the Bundaberg newspaper's report on Mr Petersen's alleged assault on Mr Watson.  She was also disadvantaged because the material she received from the prosecution in respect of Mr Petersen's case was incomplete.  Additionally, Mr Petersen, who had been in custody overnight, had apparently suffered a heart attack at the Bundaberg watch-house and been hospitalised so that she had been unable to obtain complete instructions from him.  On the instructions she had obtained, he wished to maintain his plea of not guilty.  Because of this unusual combination of circumstances, she asked that the jury be discharged and that the trial be adjourned so that his new lawyers could adequately prepare. 

[13]  The judge stated that the prosecution case was not complex and summarised it in this way.  The evidence against Mr Petersen consisted of four categories.  The first was that a packet of medication with Mr Petersen's name on it was found at the camp site near the alleged cannabis plantation site.  The second was that police found a message on Campbell's mobile phone, allegedly sent by Mr Petersen to Campbell.  It was to the effect that the police were searching Mr Petersen's home looking for a particular key.[1]  The third was that police claimed to have found a folder marked "Greg's records" at Mr Petersen's home.  It contained a map of the national park with the area marked where the camp site and cannabis plantations were located.  The fourth was the co-accused Watson's diary which provided evidence that he was recruited by Mr Petersen to be involved in the production of this cannabis crop. 

[14]  The judge determined that if the trial was adjourned, he could see no reason why it would not be able to proceed on the following Monday before the empanelled jury.  This would give adequate time for Mr Petersen and his lawyers to prepare the case and to be ready with any witnesses.  The jury returned to the court room and the judge instructed them to put the newspaper report out of their minds and that the trial would proceed before them the following Monday.

[15]  The trial recommenced on Monday, 3 March 2008 at 10.11 am in the absence of the jury.  At the prosecutor's request, Mr Petersen was re-arraigned on both counts.  He pleaded guilty to both counts.  Mr Anderson of counsel appeared on his behalf.  The judge said: "Could you inform the defendant of his rights, please."  The transcript then records: "ACCUSED INFORMED OF RIGHT OF CHALLENGE."

[16]  The implausibility of this portion of the transcript being a correct record led this Court to direct that the judges' associates listen to the original recording.  We have been informed the transcript is not accurate.  It should record that the allocutus was then administered.  The Court has been informed that an amended transcript will be issued shortly. 

[17]  The judge then discharged the jury and heard submissions on sentence from counsel.  Mr Petersen's criminal record was tendered.  During his sentencing remarks, the judge observed that Mr Petersen's criminal history was extensive: he had been before the courts 18 times since 1978. 

[18]  I note that his criminal history includes an entry in 1992 in the Bundaberg District Court when he was convicted and placed on a 12 month $50 good behaviour bond for attempting to pervert the course of justice and an entry in 1994 in the Brisbane Supreme Court when he was convicted and sentenced to community service for producing a dangerous drug and possession of a dangerous drug.  His most recent conviction was in the Bundaberg Magistrates Court in 2006 when he was convicted and fined for obstructing a police officer.

[19]  As noted, the judge sentenced Mr Petersen to an effective term of three years imprisonment suspended after 12 months with an operational period of four years. 

[20]  Mr Petersen's written submissions in favour of his application to extend time to appeal in essence are as follows.  Prior to 26 February, when his case came before the primary judge, he had been very busy with his family.  He had three very young children and his wife was pregnant with their sixth child.  She had an ectopic pregnancy, which was dangerous and difficult.  The baby was born on 4 February 2008, a few weeks before his case came to court.  For this reason, he had not been able to track down witnesses he wanted to call.  He had not realised his trial was to proceed on 26 February.  He claimed his solicitor and barrister should have done more to find his witnesses instead of expecting Mr Petersen to find them.  Mr Hastie wanted him to sign a document stating that he would plead guilty.  Mr Petersen lost faith in his legal representation because he wanted to plead not guilty as he was innocent.  He believed that at the time this matter was before the primary judge, he was not in a fit mental state to go to trial.  He was in a lot of pain from his "teeth and disease and injuries and … was the only one who could find the witnesses".  The judge, he argued, should have adjourned the trial.  When the judge revoked his bail, he was unable to take his medication and he suffered sleep deprivation because of severe pain.  He had been in such severe pain from his disease, injuries and toothache that he was unable to understand anything at all.  He claimed that he did not enter a plea of guilty and the prosecutor told the judge he pleaded guilty but in fact he did not. 

[21]  In his oral submissions, Mr Petersen re-emphasised some of those matters and added the following.  By way of explanation for the delay in bringing his application, he said that he had had no legal representation since April this year.  A number of lawyers had advised him that he had no prospects of success.  Legal Aid had refused to help him.  He knew nothing about the law and had spent a lot of time trying to find lawyers to assist him.  He had been unable to meet the formal time and procedural requirements of appealing because he had been assaulted by other prisoners and he had been denied the opportunity inside prison to access legal authorities.  Only in May this year did he receive advice from another prisoner that he should not have been put on trial and should appeal.  Since then, he states that he has done his best to expedite his case before the Court of Appeal.  He claimed that he has been denied his "constitutional right" to legal representation.  He should, he argued, be entitled to have an extension of time to appeal, and successfully appeal against his conviction so that the guilty pleas are set aside and he should have a new trial.

[22]  Mr Petersen also applies for leave to adduce further evidence.  In his written submissions he expressed a wish to call or have issued a notice to appear for a number of witnesses, including medical witnesses, some of whom he claims would give evidence about the debilitating effects on a person's mentality of sleep deprivation coupled with side effects of medication.  He also listed the names of other witnesses from whom he hoped to obtain evidence, including family members, police officers and acquaintances whom, he claimed, could give evidence that he was not associated with his co-offenders.

[23]  Prior to the hearing of this appeal, he had placed no admissible evidence before this Court from any witness.  During the hearing, he said he was in possession of affidavits from witnesses.  The Court stood down the matter to allow him to fax this material to the Court.  The Court subsequently received a bundle of faxed material. 

[24]  It included four statutory declarations from his wife, Linda Marie Petersen.  In the first, she declared that Mr Petersen mistakenly took sleeping medication at about 11.15 am on the day on which he assaulted Michael Watson.  She was not at court that day, she said, because she was told not to attend as she was a potential witness.  In the second, she stated that (inferentially during the primary court hearing) she handed his prescription medication to a police officer who said he was taking it to the Bundaberg watch house for Mr Petersen.  In her third, she stated that she made efforts to help Mr Petersen obtain legal aid for his appeal since he has been in the Maryborough Correctional Centre serving his present sentence.  In the fourth, she said that in December 2005 Mr Petersen received a phone call from Brad Love accusing Mr Petersen of stealing Love's motor bike.  Love threatened to harm him and demanded $1,000 for the loss of the motor bike.  Mr Petersen had brief encounters with Steve Campbell.  On one occasion he came to their house to sell cannabis.  Mr Petersen could not pay Campbell.  On other occasions, Campbell came to the house "to chase up the money".  Because of these threats, she and Mr Petersen marked a map of the general location (inferentially where the cannabis plantation was found) "just in case [Mr Petersen] didn't arrive back in time from his camping trip".  In that event, she said that she was to hand the map to the police and tell them of Love's threats and that Mr Petersen believed Brad and Steve were cultivating cannabis.  She stated that Mr Petersen was not involved in the cannabis plantation in any way other than purchasing small amounts of marijuana from Campbell for his own use to cope with back pain and to sleep. 

[25]  Another statutory declaration was from Mr Petersen's son, Aaron Petersen.  He stated that he has camped with his father on a number of occasions.  He knows his father is not involved with Brad (Love), Steve (Campbell) and Michael (Watson).  When he went camping with his father, he did not see any marijuana plants.  His father set up the camp for the family so that they would have somewhere to go "if the bird flu came". 

[26]  Haley Mitchell provided an affidavit to the following effect.  She was friendly with Mr and Mrs Petersen.  She camped with them in an area near their home.  Mr Petersen set up the camp to escape bird flu if it became necessary.  Once when she was at the camp, her former partner, Michael Scott, took her to another site where there were men camping.  He told her the men were growing cannabis and that Mr Petersen was buying some from them to help his back pain.  One of these men was called Mick.  She saw nothing to indicate that Mr Petersen had anything to do with the cultivation of marijuana at that camp. 

[27]  The last of the faxed material was an affidavit from Michael Scott to this effect.  He became friendly with Mr Petersen and boarded with the family for a time.  He assisted Mr Petersen to establish a safe, self-sufficient camp site for his family and friends to escape bird flu if this became necessary.  On one of the camping trips over the ensuing few months, they came across some men who introduced themselves as Brad, Mick and Steve.  They ran into them again a few weeks later.  They ultimately discovered that these men were growing cannabis.  Mr Scott and Mr Petersen were interested in buying cannabis from them in small amounts for Mr Petersen to use as pain relief for his back.  Mr Petersen had a falling out with these men over what they claimed was a stolen motor bike.  Not long afterwards, the police discovered the cannabis plantation.  These men made false allegations implicating Mr Petersen in the cannabis cultivation.

Conclusion

[28]  Mr Petersen's explanation for his significant delay in bringing this application for an extension of time to appeal is unpersuasive.  There is no sworn evidence in support of it.  But this Court would not refuse his application if he had promising prospects of success in any appeal or application for leave to appeal against sentence and the interests of justice favoured extending time. 

[29]  Mr Petersen's claim in his written submissions that he did not plead guilty is patently false.  The primary difficulty for Mr Petersen is that, even taking into account the material faxed to the Court during the appeal hearing, he still has not provided this Court with admissible evidence to establish that his guilty pleas were not entered in the exercise of his free and informed choice: Meissner v The Queen;[2] R v MacKenzie[3] and R v Allison.[4]  His contention, unsubstantiated by evidence, that his free will was actually overborne because he was on medication, sleep deprived and in pain, is not borne out by the court record.  It may be accepted that his usual medication was disrupted and that he was in pain and had a broken night's sleep before he pleaded guilty.  But that is not uncommon for any litigant in the courts.  Litigation is stressful for the parties.  It is especially so in criminal cases where a litigant's liberty is in jeopardy.  It is a long bow to draw from the fact that, because he was in pain and sleep-deprived, his free will was overborne when he pleaded guilty.  The record shows that Mr Petersen appeared reasonably confident and comfortable in addressing the primary judge directly, even when he was legally represented.  I note his extensive prior experience with the criminal justice system, including many court appearances in Magistrates Courts and a previous appearance in each of the District and Supreme Courts.  In that context, his failure to protest his innocence at any time after he entered his pleas of guilty when the prosecution's contentions as to his role in these offences were set out in court and were accepted by his barrister, Mr Anderson, is telling.  All this supports the conclusion that his guilty pleas were regularly entered and conclusively establish his guilt on both counts.

[30]  Mr Petersen's contention that he was denied his constitutional right to adequate legal representation before the primary court and, perhaps, in this Court is also wrong.  He has not established that his legal representation at first instance has led to a miscarriage of justice.[5]  He does not have any constitutional entitlement to legal representation in his application for an extension of time to appeal against conviction in this Court: cf Dietrich v The Queen[6]and R v Gudgeon.[7]

[31]  Even were his application to adduce further evidence before this Court granted, he has not demonstrated that his guilty pleas were other than entered in open court by a person of full age and apparently of sound mind and understanding in the exercise of a free choice and in his own interests.  As to sentence, he has made no oral submissions to the effect that it is manifestly excessive.  In his written submission he states: "I do not wish to appeal my sentence!!"  He certainly has not demonstrated that the sentence imposed was outside the range for a significant production of cannabis charge committed by a mature man with an extensive and relevant criminal history.  Any extension of time to appeal against conviction or to apply for leave to appeal against sentence would be futile.  His application for an extension of time to appeal against conviction and for leave to appeal against sentence should be refused.

[32]  For completeness, I return to Mr Petersen's application to adduce further evidence.  The evidence in the statutory declarations and affidavits he has faxed to this Court was available at the time this matter was before the primary court.  Even more importantly, he has not demonstrated that, had it been available and placed before a jury at trial, there is any significant possibility, or that it is likely, that a reasonable jury would have acquitted him: Gallagher v The Queen;[8] Mickelberg v The Queen;[9] R v Main;[10] R v Katsidis; ex parte A-G (Qld).[11]In any case, for the reasons given, even if it were admitted before this Court, it would not enable Mr Petersen to have his guilty pleas overturned on an appeal against conviction.  It follows that the application for leave to adduce evidence is also refused.

Orders

1.     The application for leave to adduce evidence is refused.

2.    The application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence is refused.

[33]  WHITE AJA:  I have read the reasons for judgment of the President and agree with her Honour that neither the transcript of the hearing, on Monday 3 March 2008, nor Mr Petersen’s explanation about his reason for pleading guilty on that day, demonstrate that his guilty pleas were entered other than in the exercise of a free choice to do so.  As the President has observed, when Mr Petersen addressed the trial judge he appears, so far as the transcript reveals, to have been confident in doing so.  That was confirmed on the hearing of this appeal.  Mr Petersen appeared articulate and able to advance his own interests.  His long relationship with the criminal justice system suggests that he would not have been overwhelmed by the experience.

[34]  I agree with the orders proposed by the President.