R v Mallardi[2009] QCA 5

SUPREME COURT OF QUEENSLAND

FRASER JA:  On 1 December 2006, the applicant was convicted on his pleas of guilty to murdering his parents on 9 August 2006.  He was given the mandatory sentence of life imprisonment on each count.  The sentencing judge ordered in respect of each offence that the applicant must not be released from imprisonment until he had served a minimum of 20 years, unless released on parole in exceptional circumstances as provided for in the Corrective Services Act 2000.

On 22 September 2008 the applicant filed an application for an extension of time within which to appeal against his convictions.  On such an application the Court considers whether there is any good reason shown to account for the delay.  And it considers overall whether it is in the interests of justice to grant the extension - see R v Tait [1999] 2 Qd R 667 at 668.  The applicant has not satisfactorily explained his delay in appealing, but the Court, nevertheless, retains a discretion to extend time if it considers that a refusal to do so could result in a miscarriage of justice: see R v GV [2006] QCA 394 at [3].  It is appropriate, therefore, to consider whether there is any arguable merit in the proposed appeal. 

Subsection 668E(1) of the Criminal Code provides that the Court, on an appeal against conviction, shall allow the appeal if it is of the opinion "that on any ground whatsoever there was a miscarriage of justice."

In Meissner v The Queen (1995) 184 CLR 132 at 141 Justices Brennan, Toohey and McHugh observed that there is no miscarriage of justice if a Court acts on a plea of guilty 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.  And that is so, even if the person entering the plea is not in truth guilty of the offence.  Although the circumstances in which the Court will find that there has been a miscarriage of justice in a conviction entered upon a guilty plea cannot be comprehensively categorised, such circumstances must be rare and it is plainly insufficient merely to point to the existence of some evidence which is consistent with the innocence of the prisoner who pleaded guilty: see R v Carkeet [2008] QCA 143 at [21] to [26].

There is here no arguable basis in the evidence for disregarding the applicant's pleas of guilty. 

It is convenient first to discuss the first, second and fourth grounds in the notice of appeal.  The first ground is that the applicant received incorrect legal advice to plead guilty.  He argues that he had poor legal representation, that he was told by his lawyer at the time to plead guilty, that he was never informed that the offence of murder required proof of intent, and he did not possess the requisite intent.  The second proposed ground of appeal is that a report by a psychiatrist, Dr James, suggested a possible defence of diminished responsibility.  The applicant argues that at the time of his offending he was suffering a depressive disorder.  He had been subject to a great deal of stress and he had become traumatised psychologically.  The fourth proposed ground of appeal is that the applicant's legal advisors did not adequately advise him on the reduced charge of manslaughter.  He argues that provocation was not considered.

All of these arguments are inconsistent with the record of the proceedings before the sentencing Judge.  The applicant was represented by experienced counsel who was instructed by a solicitor.  The applicant pleaded guilty in open Court, apparently freely and voluntarily.  In his presence, the sentencing Judge inquired of the applicant's counsel whether the question of any possible defence or exculpatory matter had been fully investigated, and the applicant's counsel assured the Court that the appropriate investigations had been undertaken, a psychiatric report by Dr James had been prepared (a copy of which was provided to the sentencing Judge) and that counsel and solicitors had both turned their mind to the question of any defence and had taken instructions from the applicant on the matter.  The applicant's counsel assured the sentencing Judge that a cautious approach was taken, the matter had been investigated at length, and the applicant was "very strong" in his instructions that he wished to plead guilty.  In this Court the applicant argued that his lawyer advised him to plead guilty, but he did not argue that it was not his own decision. 

The applicant's version of events was contained in a statement which his counsel read out in open Court.  According to the applicant, from the time he had initially worked on the family farm, he was encouraged to believe that the farm would ultimately become his as the only surviving child of his parents; and following the applicant's marriage, he returned to the farm under some considerable persuasion by his parents, and as a result of discussions which lead him to believe that a partnership would be formed.  The applicant said that he was providing much of the labour without having any interest in the farm and without being paid for the work that he did.

After he suffered a serious spinal injury which prevented him from continuing to work on the farm, he was put in a very difficult position with a family to support, no interest in the farm and his parents refusing to sell the farm to provide a source of income for him and his family.  He said that he confronted his parents who, after initially agreeing to sell the property, changed their minds and advised the applicant that he would have to obtain workers’ compensation to support his family.  After the applicant was told that workers’ compensation was not available to him, he continued to argue with his parents until the day of the shooting.  During that day, his father and mother separately told him that the decision not to sell the farm was final.  The applicant's version was that he did not immediately react to this news, but after taking some medication and lying down to consider the situation, he committed the offences.

The circumstances of the offences were detailed by the prosecutor in submissions on sentence, which were not disputed by defence counsel.  After the applicant had rested for a while, he obtained a double barrelled shotgun and eight cartridges.  He loaded the gun.  He waited in ambush for his mother in the bathroom and he shot her at close range in the head - apparently killing her instantly.  He waited in a farm shed for perhaps an hour for the return of his father and upon his father's return, he killed him with a shotgun shot to the back of his head.  The applicant said at an interview with police that he made a spur of the moment decision to kill his parents.  After the killings, the applicant hid the weapon and he later told a triple 0 operator that it was a “double murder” which had “been a long time coming”.

Although the circumstances stated by the applicant were tragic, the charges of murder were consistent with the facts disclosed in the evidence.  The sentencing judge considered that material and observed that it did not provide any support for a defence to the murder charges under the provisions of the Code concerning insanity, diminished responsibility or accident.  Nor is there a basis for setting aside the guilty pleas on the footing that provocation might have been advanced as an arguable defence.  The applicant's statement and circumstances of the offences described in the prosecutor's submissions were not inconsistent with the view that these were cold blooded murders in which the applicant intended to kill his parents after he had considered their refusal to sell the farm. 

More fundamentally, those grounds of the proposed appeal, like the remaining, third ground, do not assert and no evidence had been adduced to support an assertion that when the applicant pleaded guilty, he was not of sound mind and understanding or that he did not act in the exercise of a free choice in his own interests.

The third ground of appeal is that on the day of the applicant's sentence, he was confused and could not think straight.  He argued in this Court that he was in a state of shock.  The record shows, however, that with the benefit of experienced legal representation, the applicant entered pleas of guilty in open Court, apparently freely and voluntarily, and in the exercise of his own free choice.

I am not satisfied that there was any arguable miscarriage of justice such as to justify the claimed extension of time for appealing.  I would refuse the application.

THE CHIEF JUSTICE:  I agree.

P LYONS J:  I too agree.

THE CHIEF JUSTICE:  The application is refused.