SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The application for an extension of time to appeal against conviction must be refused for the reasons given by Muir JA.

[2]  MUIR JA: Introduction

The 50 year old applicant pleaded guilty to the rape of his 20 year old niece on 11 August 2008 and was sentenced in the District Court at Maroochydore on 27 July 2009 to five years imprisonment suspended after 20 months with an operational period of five years.  On 11 September 2009 the applicant filed a notice of application for an extension of time within which to appeal on the grounds that his conviction was unsafe or unsatisfactory.

The written material relied on by the applicant

[3] The application is not supported by any sworn evidence but reliance is placed by the applicant on four letters, three of which are dated 11 September 2009, and one dated 23 November 2009.  The first letter explains that after being sentenced the applicant was in the Maroochydore watch-house for three days.  He was then shifted to the "Brisbane Correctional Centre", where he was moved to three different units.  He spent time in the Princess Alexandra Hospital for a heart complaint before being moved to Woodford Prison "where [he] stayed [in] another unit and … was then transferred to Residential."  After all the movement and shock of being in jail he "totally lost track of time" (original emphasis).

[4] The second letter states that the applicant was devastated as a result of being charged for a crime he did not commit and that he "just wanted it to end".  It states that:  "there was no violence on the night"; he was misled by his "legal team"; that he was "doing the right thing"; and that he has "exculpatory evidence" which would definitely prove his innocence.  The evidence is not identified in the letter and has not been identified elsewhere.  The third letter states:

"These are special grounds, as the judge did not hear or see any evidence or did he know any circumstances of the crime, and to my knowledge to lie in court is purgery (perjury), and if he were to hear the case again the outcome would be completely different." (original emphasis)

[5] The final letter dated 23 November 2009 also narrates the applicant's movements after 27 July 2007, and concludes:

"During this time I was trying to prepare my appeal which seemed impossible, but being innocent of a crime I could not commit was the drive to make sure I would not fail.  I hope this is enough to satisfy you that I have not had time on my side and an extension would mean that I might have a second chance to prove my innocence."

The sentencing hearing and other relevant circumstances

[6] The applicant took part in an electronically recorded interview with police on 3 September 2008 in which he admitted that he had had sexual intercourse with the complainant.  He said that was heavily intoxicated at the time and that the sexual activity was consensual.

[7] The applicant was represented at a committal hearing by counsel and solicitors.  The complainant gave evidence at that hearing.  The indictment originally presented charged two counts of rape, one digital and one penile, arising out of the same incident and a count of incest, charged as an alternative to the penile rape.  When the matter was listed for trial, however, the applicant's legal representatives intimated to the prosecution that the applicant would plead guilty to one count of rape, with the digital penetration being considered part of the conduct leading to one act of penile rape.  The matter was listed for sentence on that basis.

[8] On the sentencing hearing, the applicant was represented by the counsel and solicitors who had represented him at the committal.  A statement of agreed facts, which was tendered, narrated the circumstances of the subject incident in some detail.  The statement included the following account.  The complainant remonstrated with the applicant when in his unit, to which they had come at around midnight after drinking, he commenced kissing her and inserting his tongue in her mouth.  The complainant continued to protest as the applicant pulled down her jeans, held her down and had intercourse with her.

[9] The complainant returned home at about 6 am and complained to her mother two days later.  She also saw a youth worker and made her complaint to police on 1 September 2008.  At the sentencing hearing the learned Crown Prosecutor orally stated the facts surrounding the offence in considerable detail without interruption or contradiction by the applicant or his counsel.

[10]  At the hearing, defence counsel tendered a psychologist's report dated 26 July 2009 in which the psychologist reported that the applicant described the events of the incident "in a manner indicative of his acting out of character, and as violating his moral and ethical codes."  The report stated:

"He expresses guilt, remorse, and shame, and accepts full responsibility for his actions, and grief at their impact on his family, particularly his brother, and sons, including shattering his desire to always be a good role model to the latter.

…

He is distressed, ashamed and remorseful that his behaviour could have in any way terrified, or been perceived by [the complainant] as being 'of an animal not a gentleman.'"

Consideration

[11]  In Meissner v The Queen Brennan, Toohey and McHugh JJ said:[1]

"A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence." (footnote deleted)

[12]  It is apparent from the above passage that it may not even be sufficient to secure the setting aside of a conviction on a plea of guilty for an applicant to establish his or her innocence.

[13]  It can be gleaned from the letters referred to earlier that the applicant sought to rely on four matters to justify his delay in appealing and to otherwise support his extension of time application:

(1)His distress at being imprisoned in conjunction with his ill-health and subsequent movement from one prison to another;

(2)The bearing of his emotional state on his judgment at the time of sentencing;

(3)His being "misled" by his counsel and solicitors that by pleading guilty he was "doing the right thing"; and

(4)"Exculpatory evidence" which would prove his innocence.

[14]  The fourth matter may be disregarded.  The applicant made no attempt to identify such evidence or to explain why he did not wish to rely on it before pleading guilty.

[15]  No explanation was offered as to what is meant by the third point beyond the applicant stating in oral submissions that he was advised that if he pleaded guilty he would receive a lower sentence than the sentence which would be imposed if he was convicted after a trial.  On the face of the evidence, it appears that the applicant knew quite well what he was doing at relevant times.  There is no suggestion that he acted or was induced to act inconsistently with any instructions given by him to his legal advisers.

[16]  In Meissner v The Queen[2] Brennan, Toohey and McHugh JJ said conduct:

"… that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put.  Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge."

[17]  The same proposition was expressed by Dawson J as follows:[3]

"… merely to reason with the accused, pointing out the advantages of pleading guilty and the disadvantages of pleading not guilty – even if the advantages or disadvantages extend beyond the legal consequences – will not amount to an attempt to pervert the course of justice."

[18]  There is nothing in the material relied on by the applicant which suggests that his legal advisers placed any pressure on him to plead guilty, let alone any strong or illegitimate pressure.  The material and oral submissions does not suggest either that the applicant was given erroneous advice.

[19]  The onus is on the applicant to establish that a miscarriage of justice took place when the Court accepted and acted on his guilty plea.[4]  In this regard, the applicant is faced with the difficulty that his plea of guilty was made in open court in the exercise of free choice after legal advice.  Also, it has not been demonstrated that the plea was not entered in consequence of an acceptance by the applicant of his guilt or as a result of the strength of the case against him.  The applicant was able to gauge the strength of the prosecution case from the committal hearing.  He then decided to plead guilty, knowing precisely what allegations were made by the complainant.  After seeing the complainant's statement, he told the psychologist the matters referred to above.  There is no reason to suppose that if an extension of time were to be granted to enable the applicant to appeal, his prospects of success would be better than faint.  Nor did the explanations provided by the applicant for his lengthy delay in appealing or in making this application provide much in the way of justification for the delay.

[20]  As for the second matter relied on by the applicant, it may be accepted that he was in a state of emotional distress and turmoil at the time of sentencing.  That would be a natural enough consequence of his shame, his imminent deprivation of liberty and of his impending separation from his family.  It does not follow though that the applicant was incapable of giving instructions to his legal advisers or that he did not understand and accept the accuracy of the agreed statement of facts or those facts asserted by the Crown Prosecutor.

[21]  For these reasons, I would order that the application be refused.

[22]  DAUBNEY J: For the reasons given by Muir JA, with which I respectfully agree, I would also refuse this application.