SUPREME COURT OF QUEENSLAND

1. FRASER JA: I agree with the reasons for judgment of Ann Lyons J and the order proposed by her Honour.

2. CHESTERMAN JA:  I agree that the application should be refused for the reasons given by Ann Lyons J.

3. ANN LYONS J:  On 31 January 2008 the applicant pleaded guilty in the District Court to two counts of raping a 16 year old girl on 18 November 2005.  Convictions were recorded with respect to both counts and the applicant was sentenced to concurrent terms of imprisonment of six and a-half years.  As those convictions breached the terms of a wholly suspended sentence of one month which had been imposed on 3 June 2005, his Honour Brabazon DCJ ordered that the term of one month be served concurrently with other terms of imprisonment.  The parole eligibility date was fixed at 30 March 2010 which was at the one third mark.

The previous application for extension of time in 2009

4. On 4 June 2009 the applicant filed an application for an extension of time within which to appeal and a notice of appeal in relation to his conviction and sentence in relation to the two counts of rape.

5. That application for an extension of time was considered by the Court of Appeal in 2009 and the application was refused (R v Riley^[1]).  In that decision the court considered whether there was a good reason shown by the applicant to account for the delay of 15 months.  The applicant had asserted that it was not until he was incarcerated that he was able to acknowledge the seriousness of his conviction.  His argument on that occasion was that he believed that he was entering a plea of guilty on the basis of an involvement in the offence of sexual assault whilst in company “but the fact that I plead guilty to Rape is unacceptable given the fact that I was not made aware that this was an offence I would also be convicted and sentenced on”.  The applicant argued on that occasion that his part in the offence amounted only to the offence of being present whilst the sexual assault occurred and that he had not intended to plead guilty to the offences of rape. 

6. The basis of the applicant’s appeal is set out in the decision of the Court of Appeal:^[2]

“The applicant argued that his part of the offence amounted only to the offence of ‘sexual assault armed/in company’. Putting aside the reference to ‘armed’, the point which the applicant endeavoured to make was that he had not intended to plead guilty to the offences of rape. He argued that he should have been sentenced only for ‘sucking on a females breast, who at the time of the offence did not resist or communicate offence to the act performed.’ He said that he had entered an ‘equivocal plea’, contributed to by lack of communication with his legal representatives whilst on bail and the fact that he could not read, so that he did not see the prosecution case made against him. He argued that he relied solely on the advice and guidance of his legal representative who, he asserted, had ‘withheld an imperative fact in the prosecutors case which corroborated the applicants innocence of the crime of Rape.’

It seems that this ‘imperative fact’ was DNA evidence which corroborated the statements made by the complainant that the applicant had sucked her breast. The applicant contended that this evidence established his innocence. The applicant argued that the sentencing judge acknowledged that the DNA evidence ‘quite clearly established the accused’s innocence yet accepted the plea of guilty.’ He argued that the sentencing judge had acknowledged that the applicant had not physically raped the complainant and that his Honour had therefore erred in accepting his pleas of guilty. He contended that he was made an example of through ‘unfair practices and bias due to institutional racism of Australian Indigenous peoples.’”

7. The court held, however, that the applicant’s contentions were irreconcilable with the record of the sentence hearing on 31 January 2008, given that the circumstances of the offences were fully outlined by the prosecutor at the sentencing hearing:

“[13]The prosecutor outlined the following circumstances of the offences.

[14]On 18 November 2005 in the central business district of Brisbane at about 12.30 am the complainant and a female friend of hers encountered the applicant. He was with a man who, on the Crown case, was a co-offender and a third man who knew the complainant’s friend. The third man behaved in such a way as to attract the attention of police. They took the names and details of each of the five persons in the group. The third man left together with the complainant’s friend, leaving the complainant alone with the applicant and his co-offender. She had not earlier known either of them. The co-offender and the applicant both asked the complainant to go for a walk. The complainant’s description of that request was that the applicant and the co-offender were fairly insistent. The complainant felt scared of them and went along, but there was no suggestion that there was any physical force or coercion.

[15]The three of them walked down a street and into an alley. Once they were in the alley the co-offender ‘pushed the complainant down’ on to a large garbage bin and crudely expressed his wish to have sexual intercourse. The complainant responded by saying words to the effect of, ‘I don’t want to. Leave me alone.’ The Crown case was that the complainant repeated that a number of times throughout the incident. The prosecutor continued:

‘At that point it seems [the co-offender] requested that this prisoner hold the complainant down. The complainant held her. There was further request for the complainant to kiss them and the complainant continued to object to that. She recalls at some stage both this prisoner, but predominantly [the co-offender] saying words to the effect of they could stay there and fuck her all night long. She recalls this prisoner attempted to remove her pants and she continued to object saying, “No, leave me alone.”, or words to that effect. He ultimately did pull her pants down and it seems her top was removed. This prisoner was sucking on one of her breasts and following that or at the same time [the co-offender] effectively lifted her legs and forcibly raised them above his own shoulders. She recalls that she was then penetrated by [the co-offender] with his penis to the area of her vagina. She states that she continued to object and was moving around begging her – him to stop. Following that, [the co-offender], it seems, removed his penis from her vagina and inserted it for a short period of time into her anus. When that occurred the complainant began screaming loudly at both prisoners and they subsequently desisted and ran from the area. She recalls the prisoner saying to her words to the effect of, “Don’t tell anyone. We didn’t force you to do anything.”’

[16]Subsequently the complainant dressed, returned to the mall area and complained to a citizen and then to police. She was upset and crying. She was taken to hospital. A medical examination showed bruising to one of her breasts and internal physical injuries which the prosecutor described in terms that were consistent with recent penetration of her vagina and anus. The applicant was quickly identified, located and arrested. He declined to participate in a record of interview. Subsequent forensic testing established that the applicant’s DNA was found in a swab taken from the complainant’s breast and her bra.”

8. The sentencing judge in his sentencing remarks made it clear that the applicant was a willing and active participant in the events but that another man had affected penetration. This is set out in the Court of Appeal decision.

“[17]The learned sentencing judge asked the prosecutor about the basis of the applicant’s legal responsibility. That led to the following exchange:

‘MR CASSIDY: Aided, encouraged, assisted the actual penetration of the complainant. In my submission, the evidence is that he was actively involved in what occurred in holding down the complainant. He was participating in the sexual indignities in as far as kissing her breasts and so forth.

HIS HONOUR: So it is a section 7 case – held her down and participated. Also touching her breasts is not charged as some additional offence. It is part of the assistance, is that it?

MR CASSIDY: Well, my submission it is part of the facts which the Crown relies upon.

HIS HONOUR: Yes.

MR CASSIDY: It doesn’t need to be charged separately, given that the rape, which is he is part and party of -----

HIS HONOUR: So the other man was guilty of all the penetration; is that right?

MR CASSIDY: Yes, he is the one who actually effected penetration.

HIS HONOUR: Yes.

MR CASSIDY: The Crown case is that this man was a willing and active participate in those events.

HIS HONOUR: Yes. All right. Yes.’”

9. In his sentencing remarks, which followed the exchange outlined above with the Crown Prosecutor, the learned sentencing judge specifically outlined the basis upon which the applicant was being sentenced as follows:^[3]

“You have pleaded guilty to two counts of raping a girl who was 16 years old at the time. You, in fact, did not physically rape her but you certainly assisted the other man called [the co-offender] to both rape her vaginally and anally, the second resulting in an injury as well to her anal area and internally.”

10. The Court of Appeal decision noted that defence Counsel had informed the sentencing judge that s 7 of the Criminal Code 1899 (Qld) (the Code) had been explained to the applicant before he pleaded guilty.  The Court of Appeal decision stated that on the facts outlined by the prosecutor the applicant was a person who had enabled or aided his co-offender to commit the rapes and as such he was deemed by s 7 to have “taken part in and to be guilty of the rape offences committed by his co-offender.”^[4] 

11. Ultimately, the Court of Appeal concluded that the applicant’s submissions to the Court about the circumstances of the offences conflicted with the prosecutor’s statement at the sentencing hearing to the effect that after the co-offender had made plain his desire to have sexual intercourse with the complainant and she refused, the applicant complied with his co-offender’s request to hold the complainant down. The Court concluded that it was clear that the statements by the prosecutor, as well as defence counsel’s acquiescence in and elaboration of those statements and the sentencing judge’s similar statements were all made in the applicant’s presence. It is clear the Court concluded that the record showed that after he pleaded guilty to both counts of raping the complainant he remained silent during the hearing.

12. The Court concluded that^[5], “had the circumstances of the offences been as the applicant now asserts, nothing the applicant argued could plausibly account either for his unequivocal pleas of guilty or for his remaining silent during the rest of the sentencing hearing”.  The Court continued: “The stark inconsistency between the applicant’s contentions and the record, coupled with the absence of evidence from the applicant, his counsel, his solicitor, and his mother of what in fact occurred at the hearing make it impossible to accept the applicant’s contentions”.

13. The Court concluded that the applicant had not established an arguable case that his plea of guilty was entered in the factual circumstances for which he contended. The Court concluded that it was, therefore, inappropriate to extend the time within which the applicant was permitted to appeal.

14. In relation to whether the sentence was manifestly excessive the Court concluded that the sentence was plainly within the learned sentencing judge’s discretion, it was not manifestly excessive. The Court considered there was no substance to the application for leave to appeal against the sentence and an extension of time could not be granted.

Current grounds of appeal

15. The applicant lists three grounds in his current application for an extension of time within which to appeal:

1. he did not know that he could appeal his sentence or his conviction after a guilty plea;

2. he has lost faith and confidence in his legal representative and the justice system; and

3. he was treated unfairly throughout his criminal proceedings.

16. The essence of the applicant’s argument to this Court in relation to an extension of time is that he was unaware that he could appeal his sentence until he met a person in prison who was a law student. It was this law student who advised him that he had a right to appeal against his conviction and sentence even though he had pleaded guilty.

17. The applicant’s argument as to why an extension of time should be granted given his delay is in very much the same terms therefore as the argument he advanced before the Court in 2009. Essentially he was unaware of his appeal rights. Once again there is a substantial overlap between the explanation for his delay and the arguments in support of his proposed appeal. He states however that the arguments in support of his proposed appeal now are different to those previously argued and that his prospects of success are greater. He states that he did not set out his current arguments in support of his proposed appeal in his previous application as he lacked sufficient knowledge about the law and his rights and was basically unaware that he had a defence pursuant to s 24 of the Code. Furthermore he states that at the time of his sentence he had not fully examined all the scientific evidence that was available before the sentencing Court. He submits that there is no scientific evidence to establish that a rape had occurred and that he was unaware of the deficiencies in the forensic evidence. The applicant argues that these factors now mean he has good prospects of success in his application and therefore an extension of time within which to appeal should be granted.

18. The applicant argues that at the time of his sentence he actually wished to take the matter to trial. He asserts that he was improperly influenced into pleading guilty by his legal representatives and that no one was interested in listening to his account or his version of what occurred on 18 November 2005. He argues:

“My solicitor was fully aware of the circumstances of my case and the evidence relied on by the Crown, considering these circumstances my solicitor never attempted to identify a legitimate defence such as section 24 of the Criminal Code but seemed to spend more time conspiring with the Crown about how to pursued (sic) me to plead guilty, even though I expressed my innocence and wanted to proceed to trial.

I have since been made aware that by me entering a guilty plea a Court is entitled to act on such plea when it is entered in open Court and the entry of such a plea is not only an admission of all elements of the offence but also that any available defences have been negatived.

However, the circumstances surrounding how I came to enter my plea of guilty I believe is, now for discussion in the Court of Appeal.”

19. Essentially then the applicant’s argument is that he wanted to go to trial and that he had a good defence on the basis of s 24. Furthermore he states that:

“It is submitted: that given the circumstances of my version of the events that took place on the 18 November 2005, and if I was provide (sic) with sufficient legal representation, section 24 of the Criminal Code could have been identified as a legitimate criminal defence to the charges that I was facing.

Generally criminal liability is not avoided because the accused was acting under a mistake. However, sometimes a mistake of fact (an erroneous belief in the existence of certain facts) may be relevant to the question of criminal responsibility.

Where a subjective mental element is part of an offence, the prosecution must prove beyond reasonable doubt that the accused possessed a certain intent or knowledge or recklessness. If an accused has an honest but mistaken belief in particular facts (not a mistake of law), this may indicate an absence of the requisite mental element and the prosecution will fail to prove their case.

The honest and mistaken belief does not have to be based on reasonable grounds. It is entirely subjective and it does not matter whether the mistaken belief was entirely unreasonable, although if a belief is unreasonable it may fail to satisfy a jury that it was honest.

The defence of mistake of fact is available in relation to most offences, particularly strict liability offences. Strict liability offences are statutory offences that do not have a specific mental element that has to be proven.

It may be a defence if the accused had an honest and reasonable belief in certain facts that, if true, would render the conduct innocent.”

20. The applicant now states that the following is what occurred:

“Glenbar then asked “M” if there was any chance of the applicant and Glenbar having sex with her, she relied: (sic)

‘Yeah, alright, but where can we go, we are in the middle of the city, and there is a lot of lighting here.’

The applicant stated that he knew of an alley way not far from where they were, some 200-300 meters away they all agreed to head towards the alley way.

Once at the entrance of the alley way, the applicant, Glenbar and “M” proceeded down the alley way, “M” started to undress removing her top followed by her jeans, she then laid down and Glenbar started kissing her, the applicant then started to suck on “M’s’ breast and “M” started to masturbate herself. After several minutes had past, “M” stated that she no longer wanted to have sex.

So they all got up, “M” dressed herself and the three of them proceeded to head back up the alley way when they arrived at the entrance of the alley way, the applicant and Glenbar asked “M” what she was going to do, she stated that she was going to head back up to where they were sitting and wait for Imogen and Craig. The applicant and Glenbar stated that they where (sic) going to head home, they then said their goodbyes and parted.

The above facts represent my versions of the events that took place on the 18 November 2005, facts that I tried to convey to my legal representatives, however my solicitor was never interested.”

21. This current version is distinctly different to the one that he gave to the Court in his previous application. The applicant’s submissions on his previous appeal are recorded in the judgment as follows:

“[7]The applicant submitted that the circumstances of his offences were as follows: after the applicant, a co-offender and the complainant went into an alley in Brisbane’s central business district, the co-offender asked the complainant once if she wanted to have sex with him; they kissed although she had clearly stated that she did not want to have sex; the co-offender and the complainant then lay down; "the applicant then joined in and proceeded to suck on the young ladies breasts"; unknown to the applicant, the co-offender had penetrated the complainant; she then "became complacent after several minutes, and extremely thwarted when the co-offender had subjected the young lady to anal penetration"; the complainant then made clearly known to the co-offender that she was no longer interested, put her clothes back on and left; and during those events the only part of the alleged offence that the applicant participated in was the act of sucking on the complainant's breasts.”

22. It would seem that the applicant’s version of events now is that he believes that the complainant consented to his sucking of her breasts and that after she made it known that she no longer wanted to have sex they all got up and left. Previously he had acknowledged that the complainant had said she did not want to have sex but he had joined in with the co-offender and had sucked her breasts. Previously it was implicit that the applicant was aware the co offender had penetrated her because she became complacent after several minutes and “extremely thwarted when the co-offender had subjected the young lady to anal penetration”. Essentially he now contends there was no penetration.

23. The applicant argues that there has been a miscarriage of justice and that the plea entered by him cannot be supported, having regard to the evidence. The applicant argues that the evidence provided no compelling proof to prove the offence of rape or any contact by him, other than DNA being found on the left and right breast of the complainant, which he says would only amount to sexual assault whilst in company. The applicant argues that the expert evidence (which included DNA) and the complainant’s own statement which was the evidence relied on by the Crown was exceedingly weak in establishing the offences of rape. He states there was no evidence provided which was substantial enough to compel a jury or to obtain a guilty verdict if the matter had gone to trial. He argues there is no evidence that sufficiently proves the offence of rape even in relation to the main perpetrator let alone the co-accused (applicant). He contends that the closest possible charge provided under the Code, considering the expert evidence, is sexual assault in company which would have seen imposed a dramatically lesser sentence than the sentence imposed on flawed evidence.

24. The applicant’s argument in this regard is that there is no compelling evidence in the report of the forensic scientist who examined the DNA evidence that places the applicant or the co-accused in the position of having physically raped the complainant. The applicant argues that the expert evidence of the forensic scientist could have been used to assist a defence against the charges the applicant was facing, particularly given his honest and reasonable belief in the circumstances he had about the night of 18 November 2005. The applicant argues that the complainant and Dr Mobbs state that there was blood evident in the injuries to the complainant. However, the applicant argues that if there was evidence of blood, then why was the testing for blood by the forensic scientist such that it returned a negative result.

25. This version is now substantially different to the applicant’s argument on a previous occasion when he accepted that penetration had occurred and that he had been present at the time.

26. None of the arguments by the applicant, however, indicate why the report of Dr Mobbs should be discounted.  Dr Mobbs’ report indicated there was evidence of:

“A collection of blood under the mucosa just inside the anus (haematoma). And two lacerations visible on separation of the buttocks and extending to the anal canal. Fresh blood was associated with each of these. Further examination of these was abandoned because of the pain.” 

27. Given the location of the lacerations and the fact that there was a haematoma, there are many explanations as to why blood was not obtained from an examination of the clothing of the complainant. There is no doubt however that the doctor concluded that there was evidence of recent penetration:

“A small bruise on her breast was likely to be caused by suction of a mouth on the breast. The genital injuries ie both the abrasion of the vulva and the lacerations of the anus were evidence of recent penetration of the vulva and anus.” 

Does the Court have jurisdiction to hear a further application?

28. It is clear that the applicant has had a prior application for an extension of time within which to appeal against his conviction. It would seem that that application was substantially based on grounds that are different to the grounds currently argued. The question is whether, in these circumstances, the Court has jurisdiction to hear a further application for extension of time. In the decision of R v AP^[6] the Court considered:

“… There is some debate as to whether, in those circumstances, this Court has jurisdiction to hear a further application for extension of time. Cases such as Grierson v R; R v Smith; R v Smith [No 2] and R v Kenny suggest this Court has no jurisdiction to determine a second application for an extension of time within which to appeal against conviction. On the other hand, Re Sinanovic’s Application, suggests that were the applicant able to establish that he had new matters demonstrating good prospects of success on appeal, this Court may have the power in the interests of justice to grant an application for an extension of time within which to appeal, even at this very late stage and after an earlier unsuccessful application on a separate basis. As the grounds of appeal sought to be argued by the applicant in the appeal here are without substance, it is unnecessary to express a concluded view on this point.”

Should an extension of time within which to appeal be granted?

29. I do not consider it is necessary to express a concluded view on the issue as to whether there can in fact be a further application for an extension of time after an unsuccessful application. In determining whether to exercise the discretion to extend the time for appealing the Court considers whether there is a good reason to account for the delay and essentially whether the Court considers that it is overall in the interests of justice to grant the extension. It is clear that in this respect the viability of the proposed appeal must be considered. In my view the arguments in support of the proposed appeal are without substance and accordingly the application should be refused.

30. The application is without substance because once again there is no evidence to corroborate the applicant’s allegations that he was intimidated into pleading guilty when he in reality wanted the matter to go to trial. Once again there is no evidence, apart from a short note from his mother, that the applicant wanted the matter to proceed to trial. There is no material in relation to this contention from his solicitor or barrister. Once again an examination of the circumstances surrounding the entering of the plea of guilty as recorded in the transcript does not support the applicant’s argument. It is clear that the applicant entered an unequivocal plea of guilty. It is also manifest from a reading of the transcript that the legal and factual basis of the plea matter was very clearly expressed by the prosecutor, defence counsel and the sentencing judge in a very straightforward way. The extremely clear way in which the sentencing hearing proceeded militates against a finding that the applicant was intimidated into pleading guilty by wrong information or a lack of information. Furthermore defence counsel at the sentencing hearing made a submission that there was an early plea as the applicant had indicated to him on 21 November 2006 that “he didn’t wish the complainant to be cross-examined and we had instructions to take a full hand up brief.....a full hand up which did take place on 11 December 2006. This was an officer from the Crown ... and I am fairly certain I indicated to her at that stage it would be a plea of guilty.”^[7]

31. The applicant’s credibility is also in issue when he puts a version of events to the Court in his current application for an extension of time within which to appeal which is different to a version which was previously put to the Court. The applicant now asserts that he had a defence under s 24 of the Code as there was on his part an honest and reasonable mistake as to the facts and that he believed that the complainant was consenting to his sucking on her breast. That is a version that has been raised for the first time on this application and is contrary to the version he allowed to be put to the court on two previous occasions.

32. In addition there is no evidence that he was misled about the scientific evidence. The evidence of Dr Mobbs clearly established that there had been recent penetration of both the anus and the vulva. There was DNA evidence in relation to the applicant found on the complainant’s breast and bra. The fact that the applicant now wishes to point to the lack of spermatozoa does not discount the clear medical evidence of recent penetration.

33. Overall having considered the applicant’s arguments as to the merits of his proposed appeal I do not consider that in the interests of justice the application for an extension of time should be granted.