SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  At the hearing of this matter on 16 February 2011, the Court granted the application for an extension of time to appeal against conviction, extended the time for appealing against conviction to 4 November 2010, allowed the appeal, set aside the conviction and instead ordered that a verdict of acquittal be entered.  I agree with Fraser JA's reasons for those orders.

[2]  FRASER JA:  On 4 November 2010 the applicant filed an application in this Court for an extension of time within which to appeal against his conviction on 12 November 2007 of an offence in March 2005 of contravening a protection order made under the Domestic and Family Violence Protection Act 1989 (Qld) and a notice of appeal against that conviction.  The application and the proposed appeal were not opposed by the respondent.  At the hearing on 16 February 2011 the Court granted the application for an extension of time, extended the time for appealing to 4 November 2010, allowed the appeal, set aside the conviction, and ordered that a verdict of acquittal be entered.  The Court then indicated that the reasons for those orders would be delivered in due course.  These are my reasons for concurring in those orders.

Background

[3] The application and proposed appeal were supported by affidavits by the applicant and his solicitor.  The respondent did not seek to challenge that evidence and did not oppose the applicant’s application for leave to adduce it.  The Court granted that leave at the hearing.  I have derived the following history from those affidavits and from the records of the proceedings in the District Court and in this Court.

[4] The applicant was charged on indictment with four offences against his former de facto partner: indecent assault, two counts of rape, and assault occasioning bodily harm.  After a trial in the District Court the applicant was found guilty by a jury and convicted of those offences.  He was sentenced in November 2007.  At the sentence hearing the prosecutor referred the sentencing judge to the summary charge of contravening a protection order in favour of the complainant, which had been transferred to the District Court under s 651 of the Criminal Code 1899 (Qld).  The prosecutor asked for the applicant to be arraigned on the summary charge.  The applicant entered a plea of guilty.  The prosecutor made it plain that the facts constituting the indictable offences formed the only basis of the alleged contravention of the protection order.  There was no suggestion that the applicant had engaged in any other conduct which might support the summary charge.  The applicant deposed in his affidavit in the present application that his plea of guilty was based solely upon the fact that he had been convicted by a jury of the four indictable offences.  The applicant entered his plea of guilty to the summary offence on the advice of his then lawyers in those circumstances.

[5] In sentencing the applicant, the sentencing judge unsurprisingly acted on the basis that the indictable offences constituted the contravention of the protection order.  The judge observed that “…you were the respondent to a domestic violence order which by these offences you breached…”.  In respect of the indictable offences the applicant was given concurrent terms of imprisonment amounting to an effective sentence of six and a half years, with a declaration that 40 days spent in pre-sentence custody was deemed time already served under that sentence.  The applicant was convicted of the summary offence but not otherwise punished.

[6] The applicant appealed against his convictions of the indictable offences.  The notice of appeal (in which the applicant complained about the quality of his legal representation at the trial) was completed and lodged by the applicant personally before he retained his present solicitor.  The applicant did not appeal against his conviction of the summary offence.  Accordingly that offence was not the subject of any consideration in that appeal.  The affidavits filed for the applicant demonstrated to my satisfaction that the applicant’s omission to appeal against his conviction of the summary offence was simply an uninformed mistake.

[7] The applicant’s appeal was successful: R v McBride [2008] QCA 412.  This Court set aside the convictions of the indictable offences and ordered a re-trial.  After the miscarriage of the first re-trial, a second re-trial was heard by a judge without a jury in the District Court on 16 September 2010.  The Crown case depended upon the complainant’s testimony.  The trial judge referred to matters which justified serious concerns about the complainant’s credibility.  His Honour was unable to conclude beyond reasonable doubt that her version of events should be accepted.  The applicant was therefore acquitted of each of the four counts in the indictment. 

[8] On 1 October 2010 the applicant filed an application in the District Court for an extension of time for filing an appeal to that Court for the purpose of setting aside the applicant’s conviction of the summary offence.  On 5 November 2010 the applicant filed a notice of discontinuance of that application, the applicant’s lawyers apparently by then having appreciated that the District Court lacked power to set aside the conviction.  As I mentioned at the outset, the applicant filed his application in this Court on 4 November 2010.

Consideration

[9] In an application for an extension of time the Court considers whether any good reason has been shown to account for the delay in applying and it considers more broadly whether it is in the interests of justice to grant the necessary extension: see R v Tait [1999] 2 Qd R 667 at 668.  The explanation for the very lengthy delay in appealing is that the necessity for an appeal against the summary conviction was overlooked until recently.  That explanation was verified by affidavit but it was not a particularly satisfactory explanation.  Nevertheless, if refusal of the application for an extension of time would result in a miscarriage of justice the Court retains the discretion to grant the extension: R v GV [2006] QCA 394 at [3]. 

[10]  The applicant’s counsel submitted that the circumstances I have described amounted to a miscarriage of justice which justified this Court in setting aside the applicant’s guilty plea, granting the extension of time, and setting aside the conviction.  The respondent did not oppose the necessary extension of time or the substantive orders sought by the applicant.

[11] There is not necessarily a miscarriage of justice merely because the applicant is not in truth guilty of the offence.  In Meissner v The Queen (1995) 184 CLR 132 at 141, Brennan, Toohey and McHugh JJ said:

“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.” (citations omitted)

[12]  In R v Carkeet[1] reference was made to various established categories of miscarriage of justice where a person of full age and apparently of sound mind and understanding had entered a plea of guilty.  The facts of this case do not bring it within any of those categories, but those categories do not exhaust this Court’s jurisdiction: see Carkeet at [26].  In Carkeet the Court found that there was a miscarriage of justice where the evidence demonstrated beyond any reasonable doubt, and the Crown accepted, that the applicant was not in truth guilty of the offence despite his plea of guilty, that another person was guilty of the offence, and that other person had been convicted of and sentenced to a term of imprisonment for the offence.[2]  This is not such a clear case but there are other significant indicia of a miscarriage of justice.  The record of proceedings in the District Court demonstrates that the applicant was arraigned and sentenced on the summary charge on the premise that he had committed the indictable offences, the uncontested evidence demonstrates that the applicant pleaded guilty to the summary charge only because he had been found guilty by a jury of the indictable offences, and the District Court’s record of the subsequent proceedings demonstrates that the premise of the summary charge, the applicant’s plea, and his sentence was false because he was not in fact guilty of the indictable offences.

[13]  The respondent’s counsel properly brought to the Court’s attention that the applicant pleaded guilty to the summary offence when he had already lodged a notice of appeal against the convictions of the indictable offences.  That was imprudent.  In another case conduct of that kind might preclude this Court’s intervention, but the evidence in this matter does not justify a conclusion that the applicant made a deliberate forensic decision to plead guilty to the summary charge, despite his appeal, with a view, for example, to avoiding a more severe sentence for that offence subsequently being imposed in the Magistrates Court.  On the evidence in this application the applicant’s decision to plead guilty to the summary charge was instead not a fully informed forensic choice.  It is also important to record that, in light of the unusual facts of this matter, the respondent’s counsel disclaimed any submission that setting aside the conviction in this case would open the way to any substantial number of similar applications.

[14]  In these circumstances there was a miscarriage of justice which this Court should correct.  For these reasons I concurred in the Court making the orders referred to in paragraph [2] of these reasons.

[15]  I should add that the applicant’s counsel did not pursue in oral argument the written submission by which the applicant sought “a Certificate” for the applicant’s costs of the proceeding in this Court.  The Court was not referred to any basis upon which the Court could or should make any such order on the facts of this matter.

[16]  CHESTERMAN JA:  I agree with the reasons given by Fraser JA for making the orders, in which I concurred, on 16 February 2011 extending time within which to appeal and allowing the appeal thus setting aside the applicant’s conviction of contravening a protection order made under the Domestic and Family Violence Protection Act 1989.