R v Henaway[2010] QCA 261

COURT OF APPEAL

McMURDO P

CHESTERMAN JA

CULLINANE J

CA No 135 of 2010

DC No 61 of 1996

THE QUEEN

v

DION LOMAS HENAWAYApplicant

BRISBANE 

DATE 28/09/2010

JUDGMENT

THE PRESIDENT:  The applicant, Dion Lomas Henaway, was convicted on 16 April 1996 in the District Court at Townsville of two counts of rape.  He and his co-offenders all pleaded guilty to various offences committed upon the one complainant.

Grant Watego, like Mr Henaway, pleaded guilty to two counts of rape.  Stewart Watego, Nicholas Lena and a juvenile each pleaded guilty to one count of indecent assault.  Mr Henaway and Mr Grant Watego were each sentenced to eight years' imprisonment.

On 9 June 2010, Mr Henaway filed an application for an extension of time within which to appeal against his conviction.  Extraordinarily, it is 14 years out of time.

He is not legally represented in this application.  His contentions under the headings "The grounds of my appeal" in his proposed notice of appeal are as follows:  he was interviewed by police without an Aboriginal elder present, which he contends was a breach of "the Anunga Rule".  "Whilst being interviewed [his] evidence was tampered with by [police] …and [his] first record of interview was not the initial evidence that was recorded."

He was pleading not guilty until "two weeks/three days before trial".  His defence counsel was "being threatened in local district of Townsville, forwarded into papers with local community members wanting to kill defence counsel for previously helping other people escape convictions for rape."

His barrister argued with him for two hours three days before the Court hearing on 16 April 1996 "trying to make [him] confess".  His barrister advised him that he "would look stupid going into Court with two older guys pleading not guilty when they had already managed to wear down the three younger guys two weeks previous to charges of guilty".

These proposed grounds of appeal are, to say the least, most unpromising even before considering the 14 year delay in bringing this application.

The sentencing Judge succinctly summed up the circumstances of Mr Henaway's offending in his sentencing remarks.  The offences involved the sexual assault of a woman who was a stranger to Mr Henaway and all his co-offenders.  They offered her a lift home.  She did nothing to encourage their sexual advances and made it plain they were unwelcome.  Mr Henaway drove the car to an isolated place where he and his co-offenders committed the various sexual offences against her.  They treated her as though she was an object to be shared around and with complete disregard for her feelings or dignity.  Mr Henaway was then only 24 years old with a minor criminal history.

The following details emerged from the uncontested statement of facts put forward by the prosecution at sentence.  Mr Henaway made full and detailed admissions to police but that was not the only evidence against him.  The complainant made a positive identification from photoboards of all five offenders 10 days after the events.  She gave details of which offender had performed which sexual assaults upon her.

Further, after the offenders left her at the scene, she ran to a house where she made a timely complaint and sought assistance.  She telephoned friends who came to the house to collect her.  On their way there, her friends saw four males walking along the highway and then came upon an unattended Holden sedan.  The complainant telephoned police, made a complaint and described her attackers.  Shortly afterwards, police picked up the four males, Mr Henaway's co-offenders.  The fifth male, Mr Henaway, was located later.  He had gone to a petrol station because the Holden sedan, used to take the offenders from the area where the complainant was assaulted, had run out of petrol.

The complainant was medically examined and found to have suffered injuries consistent with her account of the offending.

Mr Henaway has certainly not demonstrated that his record of interview would have been found to be inadmissible had he pleaded not guilty and gone to trial.  In any case, there was a persuasive body of other evidence against him.  Further, all or some of his co-offenders may well have given evidence implicating him at a trial.

Most importantly, Mr Henaway pleaded guilty.  Even from his description of what preceded his guilty plea, which I note is not supported by any evidence, his guilty plea seems to have been entered in the exercise of a free and informed choice based on competent legal advice.  There is no reason to conclude that any miscarriage of justice has resulted from his plea of guilty.  See R v MacKenzie [2002] 1 Qd R 410; [2000] QCA 324 at [5].

In Meissner v The Queen (1995) 184 CLR 132, 141; [1995] HCA 41, Brennan, Toohey and McHugh JJ explained, "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 the 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."

In quoting of that passage I am not suggesting there is any reason for this Court to doubt Mr Henaway's guilt of the two offences of rape to which he pleaded guilty but the passage does emphasise the enormity of the task before him in order to succeed in this application.

Mr Henaway has the added difficulty in this case of an unexplained delay of about 14 years in bringing his application.  His application for an extension of time appears to have no prospect of success.  There is no satisfactory explanation for his delay in bringing it.

He has asked in writing for an adjournment of this application, although he has not appeared today to pursue it.  His application for adjournment is, he says, because he is presently preoccupied with pursuing a Family Court case in respect of his young sons whom he believes are being physically abused by their mother.

His primary difficulty is that he has not established that anything would be achieved through the granting of an adjournment.

His present application to extend time to appeal against conviction has no prospects of success.  He has given no satisfactory explanation for the 14 year delay in bringing it.  He has not demonstrated that his position is likely to improve were he granted an adjournment.  He has not appeared today to pursue his case.

For all these reasons, I would make the following orders:

(1)The application for an adjournment is refused.

(2)The application for an extension of time is refused.

CHESTERMAN JA:  I agree with the orders and the President's reasons for proposing them.

CULLINANE J:  I agree also.

THE PRESIDENT:  Those are the orders of the Court.