SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: This application for an extension of time to appeal should be refused.  These are my reasons.

[2]  The applicant, Meryl Carolyn Carney, was convicted after pleading guilty on 19 June 2006 of two counts of stealing (counts 1 and 2) and one count of dangerous operation of a motor vehicle (count 3).  She was sentenced on count 3 to 12 months imprisonment suspended after two months with an operational period of 12 months, and on counts 1 and 2 to six months imprisonment suspended after two months with an operational period of six months.  All the offences occurred on 26 September 2005.  On 23 February 2009, over two and a half years out of time, Ms Carney applied for an extension of time to appeal against her conviction and sentence. 

Ms Carney's contentions

[3]  Prior to the hearing of this matter, Ms Carney, who is representing herself in this application, provided over 200 pages of material to the Court in support of her application.  She handed up a bundle of further material and submissions at the hearing. 

[4]  I apprehend her submissions to be as follows.  Although she was legally represented on 19 June 2006, she pleaded guilty when she was not in a good mental state.  She had suffered for some years beforehand from post traumatic stress disorder arising from an earlier altercation with police officers.  She believed that police officers were harassing her and, perhaps, her husband and son.  On the day of her sentence on 19 June 2006, she had "no fight left" and pleaded guilty to what she knew was a "trumped up" charge of dangerous operation of a motor vehicle.  She did so believing she "was not being charged with hitting anybody". 

[5]  By way of explanation for not lodging an appeal in time, Ms Carney said that she was struggling to survive in jail, had personal problems, and received advice from her barrister that she had no reasonable prospects of success on an appeal against sentence. 

[6]  On 6 March 2008, Ms Carney was served with a criminal compensation claim from police officer Foster, who claimed he was injured as a result of Ms Carney's commission of count 3.  She then became very distressed and attempted suicide.  She has provided what appears to be a photocopy of her suicide note dated 6 March 2008 in which she expressed her regret to her father, her husband and her son for her criminal actions which she believed could result in the family losing their home. 

[7]  Ms Carney submits that if she were granted an extension of time she could successfully appeal against her conviction, despite her plea of guilty, because she has subsequently come into possession of evidence which shows she is innocent.  The evidence on which she relies came to light through police officer Foster's criminal compensation application against her.  It is contained in a transcribed interview between police officer Foster and one of his medical practitioners.  Ms Carney claims that in the transcript police officer Foster "exposed alleged fraudulent misconduct and maladministration of which he is aware of in making an admission … this charge of 'Dangerous Driving' was 'trumped up'."

[8]  The transcribed conversation to which Ms Carney refers is as follows:

"Mr Foster continued: - 'My treating Psychiatrist is Dr Kate Sugars at New Farm Medical.  I said to her this is what I want to have a go at, I've done it before.  My problem is dealing with the public so the thing now is I'm afraid for my safety.  It's so unpredictable, police work.  Up until this happened, I just thought I'm 6ft tall, bullet proof, etc and then when that happened it was such a random thing and something that didn't need to happen.  This lady ran me over with a car on purpose.' [Were you in uniform?]  'Yeah.'  [Was she charged?]  'Yes.  They were going to go with Attempted Murder at first but they told me and I agreed it's probably one of the hardest charges to prove because you have to prove her intent, so they went with some other trumped up charge which was under the use of projectiles to escape lawful custody or something like that, namely a motor vehicle, which holds the same penalty.  That's all been completed.  She went to Court and got six months jail but suspended after one so there's no justice there but we're dealing with that.'  …"

[9]  Ms Carney also submits that she would argue that her conviction should be set aside because she was entitled to the defence under s 25 Criminal Code 1899 (Qld) of sudden or extraordinary emergency.  She argues that she was in a state of panic at the time count 3 occurred.  She was "reacting to the physiological reflex called 'Fight or Flight' … perceiv[ing her]self to be under threat".

[10] Before returning to Ms Carney's submissions, it is helpful to set out something of the proceedings in the District Court at Ipswich on 19 June 2006. 

The sentencing proceedings on 19 June 2006

[11] Ms Carney was represented by an experienced criminal barrister at the court hearing on 19 June 2006.  She was arraigned on the three offences and pleaded guilty to all of them. 

[12] The prosecutor stated that the case against Ms Carney was that she had stolen items from a shop at the Redbank Plaza shopping centre on 26 September 2005.  Two security officers attempted to apprehend her when she was leaving the car park in her car.  She almost reversed her car into one uniformed security officer.  On a number of occasions, uniformed police officer Foster told her to stop and indicated to her to pull over.  She drove her vehicle at police officer Foster, actually hitting him.  She then left the scene. 

[13] The prosecutor explained that Ms Carney in her record of interview with police claimed she did not know these men were security officers or a policeman; she did not know that she had hit police officer Foster; and she left the shopping centre in a panic because she did not know who these men were.  The judge was asked to determine the facts in view of these two contrasting versions of events in a contested sentencing hearing. 

[14] Ms Carney's barrister told the judge that the contest between Ms Carney and the prosecution was "whether or not Mrs Carney deliberately drove at the police officer intending to hit him.  Whether she appreciated who they were or not is perhaps a collateral fact.  That is the core issue."  Although objecting to some opinion evidence given by police officer Foster in his statement, Ms Carney's barrister did not otherwise object to its tender by the prosecution.[1]

[15] Police officer Foster's statement included the following.  A security officer at the Redbank Plaza shopping centre telephoned him and told him that "she had just stolen some gear from the Homemart Store and that she was going over the level three link bridge".  The security officer described her vehicle and told police officer Foster that it was parked on car park level two.  Police officer Foster went to car park level two.  He saw two uniformed security officers at Ms Carney's car and walked towards them.  Suddenly, Ms Carney's car reversed out of its car park.  A security officer jumped out of its path.  A security officer tried to reason with Ms Carney.  Her car then came straight towards police officer Foster.  Ms Carney was driving it down the middle of the broken painted line in the car park driveway.  He held up his left arm and said "stop" several times.  He estimated her speed at 40 kph.  She was travelling at a high speed for a shopping centre car park.  He was concerned that she would not stop and took a step to his right so that she could drive past him on the left.  She veered her vehicle to the right as if to drive around him.  She then drove her vehicle to the left making a sharp turn towards him.  He put his hands out in front to protect himself and tried to move out of the way.  His hands went on to the bonnet of Ms Carney's vehicle and he tried to push himself off the bonnet with his hands.  The vehicle struck him in the left leg, knee and thigh.  He stumbled backwards but managed to stay upright.  He felt bad pain in his left knee and also in his right knee.  He was taken by ambulance to the Ipswich General Hospital. 

[16] Ms Carney's barrister cross-examined police officer Foster for some time.  The police officer agreed that he no longer had any problems with his knee and that he had recovered fully. 

[17] After the lunch adjournment, the prosecutor informed the court that he and Ms Carney's barrister had had "some fruitful discussions" and "reached a position where the sentence can proceed uncontested".  The prosecutor stated that Ms Carney would be sentenced on the basis of:

"having stolen the items and having been told by the two security officers who were at the car to effectively stop and get out of the vehicle, has reversed backwards almost striking one of the security officers.  He's had to get out of the way quickly.  … The police officer … has moved to the right to allow the potential passage down [of Ms Carney's vehicle].  [Ms Carney] has changed direction, swerved in the direction of the police officer.  The Crown accepts that there certainly was no great premeditation with the act.  It was done in a state of panic in circumstances where she had not formed any specific intent to cause serious injury to the police officer.  It was, of course, inevitable he was going to sustain some injury given the manner of driving at the last minute of effectively turning in his direction."

[18] Ms Carney was 54 at sentence and had a relevant criminal history.  Unusually, it commenced in 1983 when she was 31 years old.  She was convicted, fined and ordered to pay restitution for possession of property suspected of being stolen and false pretences.  In 1984, she was placed on 12 months probation and ordered to pay restitution of $1.18 for false pretences.  In 1985, she was convicted and fined $100 and ordered to pay $24 restitution for false pretences.  In 1992, she was convicted and fined $250 for two charges of stealing.  The following month she was convicted and fined $150 for unlawfully taking shop goods away.  In 1995, she was ordered to perform 50 hours community service and to pay restitution of $50 without conviction for stealing.  In 2001, she was placed on two years probation for four counts of unauthorised dealing with shop goods.  In 2003, she was found to have breached that probation order and resentenced for the original offences to a $450 fine.  She was also dealt with on two further counts of stealing for which she was convicted and sentenced to six weeks imprisonment.  She successfully appealed against that sentence in 2004 and instead the period of six weeks imprisonment was wholly suspended for a period of three months.  In November 2004, she was convicted of unauthorised dealing with shop goods and fined $300.  In January 2005, she was convicted and fined for obstructing a police officer.  In March 2005, she was convicted of possession of property suspected of being stolen and ordered to perform 80 hours community service.  In June 2005, she was convicted and fined for unlawful possession of suspected stolen property and unauthorised dealing with shop goods.  Subsequent to her commission of the present offences, she was convicted in the Brisbane Magistrates Court on 4 April 2006 of unauthorised dealing with shop goods on 9 March 2006 and convicted and placed on 18 months probation. 

[19] Her traffic history included four prior speeding offences and one offence of failing to stop at a red light.  She also had committed a subsequent speeding offence.

[20] The prosecutor stated that police officer Foster as at 30 September 2005 was still experiencing pain in his knees, particularly the right knee.  He had taken time off work to rest his knee.  He had been referred to a specialist for treatment.  The prosecutor submitted that count 3 was a serious example of the offence of dangerous operation of a motor vehicle and the sentencing principle of general deterrence was important.  She was a mature woman with a criminal history, including previous offences for dishonesty.  An effective head sentence of 18 months to two years imprisonment was appropriate with suspension after six to eight months to reflect her plea of guilty.

[21] Ms Carney's barrister tendered reports from her consultant psychiatrist, Dr Gnani Mackinnon, dated 12 February 2004 and 23 March 2005.  In the first report, Dr Mackinnon stated that he had been treating Ms Carney since April 2003.  Prior to this, Ms Carney had been seen by the West Moreton Integrated Mental Health Service.  Dr Mackinnon noted that Ms Carney felt she had been roughly treated and humiliated by the arresting police officer on a shoplifting charge in July 2001.  She became preoccupied with her perceived ill-treatment and with obtaining justice.  Prior to this, she had no formal history of psychiatric problems apart from a "minor overdose as a teenager" and prolonged grief following her mother's death.  She was treated for post traumatic stress disorder during 2002.  Her next contact with psychiatric services was on 31 March 2003 after an attempted suicide by drug overdose after she was charged with an offence.  She was terrified of being sent to jail and was distressed and anxious.  She has a long history of shoplifting and of past physical abuse by her husband.  She felt ashamed about both these matters.  She has a moderately severe major depressive episode complicated by anxiety and post traumatic stress disorder following her perceived mistreatment by police.  She was an obsessional, rigid person who was unable to handle change and focussed on getting justice to the exclusion of other concerns.  She was taking her prescribed medication.  On 28 January 2004, she was no longer depressed nor suicidal but she remained anxious and fearful about a custodial sentence. 

[22] In the later report, Dr Mackinnon added that Ms Carney had taken at least four drug overdoses since January 2005.  She needed ongoing psychiatric care and prescribed medication.  The court proceedings and transport to a custodial setting would be stressful for her and would worsen her anxiety and panic problems.  A sentence by which she remained in the community would help in managing her severe anxiety disorder.

[23] Ms Carney's barrister emphasised that Ms Carney's psychiatric problems were consistent with her allegation in the police record of interview that she panicked when she saw a face at her car window and two other men wearing blue shirts.  Whilst she did not realise one was a police officer, she did realise he was a person in authority.  She drove dangerously in a confined car park area but she did so in circumstances where her mental state was compromised.  Although police officer Foster "was run into and injured", Ms Carney would not willingly or deliberately hurt anybody.  Ms Carney's barrister conceded that, because of her persistent stealing, she had become "a serial pest in shopping centres".  He explained that in driving dangerously she was not attempting to injure police officer Foster although she had committed a "highly reckless act". 

[24] The prosecutor tendered a report from Ms Carney's correctional services officer stating that she had performed satisfactorily on probation since April 2006.  She was considered suitable for further community based supervision. 

[25] In sentencing Ms Carney, the judge noted her criminal history and the reports from the probation officer and Dr Mackinnon.  The judge considered that count 3 was the most serious offence.  After being confronted by security officers about stealing items from the shopping centre, she reversed her car, causing one security officer to jump out of the way to avoid being hit.  She then drove on the wrong side of the driveway and swerved her vehicle in the direction of police officer Foster in a state of panic.  This was a reckless unpremeditated act and not intended to cause injury.  Ms Carney considered that police officer Foster was at least a security officer and therefore someone lawfully entitled to stop her from evading detection for stealing.  As a result of Ms Carney's driving, police officer Foster suffered injuries from which he has now recovered.  Ms Carney and others should be discouraged from behaving in such a way.  She should be required to serve a short term of imprisonment as a deterrent.  The judge then imposed sentences on Ms Carney. 

Discussion and conclusion

[26] None of the large body of material which Ms Carney has placed before this Court provides a satisfactory explanation for the lengthy delay in bringing this application.  Ms Carney has obviously decided to make this application only after police officer Foster's application for criminal compensation was served upon her.  The material relating to police officer Foster upon which she relies to support her application[2] in no way undermines the strong case against Ms Carney in respect of count 3.  The further evidence contained in the transcript on which Ms Carney places great weight does not assist her cause.  Police officer Foster was plainly conveying to his medical practitioner his view that Ms Carney should have been convicted of a more serious count (attempted murder) and that the lesser count which was accepted in full discharge of her criminal conduct towards him was an injustice – not to Ms Carney, but to him.  It does not provide any ground for a successful appeal against conviction. 

[27] Despite her apparent mental health problems, which were adequately placed before the sentencing judge by Ms Carney's barrister, Ms Carney has not demonstrated that her plea of guilty to all three counts on 19 June 2006 was anything other than free and informed.  She has had extensive experience in the criminal justice system and has demonstrated over many years a determination to stand up for what she believes are her rights.  She has previously had a successful appeal in an unrelated matter.  She has not persuaded me that she did not comprehend that in pleading guilty she was admitting her commission of each of the three counts.  Although not directly relevant to her appeal against conviction, Ms Carney's claim that she did not understand that the case against her was that she injured police officer Foster in the course of committing count 3 is not supported by the court transcript.

[28] Her recent claim to the defence of extraordinary emergency under s 25 Criminal Code appears fanciful in the circumstances set out at sentence.  This claim is no reason to go behind her apparently voluntary and informed plea of guilty. 

[29] Ms Carney has not produced any evidence to show that her conviction on all three counts flowing from her guilty pleas amounts to a miscarriage of justice: Meissner v R;[3] R v Gadaloff;[4] R v MacKenzie[5] and R v Katsidis; ex parte A-G (Qld).[6]

[30] She was a mature woman with previous convictions.  There were serious aspects to her offending: her recidivism in committing counts 1 and 2 and the danger involved to herself and others in committing count 3 to avoid lawful apprehension by someone whom she knew was at least a security officer.  In those circumstances, she has not demonstrated that the sentences imposed upon her were anything other than within the appropriate range.  The actual term of imprisonment imposed was served long ago and its operational period has also been spent.

[31] As Ms Carney has no prospects of success in an appeal against conviction or an application for leave to appeal against sentence, it would be futile to grant her an extension of time.  The application should be refused.

[32] FRASER JA: I agree that the application should be refused for the reasons given by McMurdo P.

[33] CHESTERMAN JA: I agree that, for the reasons given by the President, the application should be refused.