R v Armstrong[2014] QCA 274

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  On 10 August 2011, the applicant, Gavin Arthur Thomas Armstrong, was convicted on pleas of guilty to a count on indictment of manslaughter and to summary offences of driving under the influence of alcohol and driving while unlicensed.  Sentencing proceeded that day.  For the manslaughter conviction, the applicant was sentenced to nine years’ imprisonment with eligibility for parole after three years and six months.  Allowing for nine days of declared pre-sentence custody, the parole eligibility date was set at 1 February 2015.  The applicant was also disqualified from holding or obtaining a driver’s licence absolutely.  For each summary offence conviction, he was sentenced to two months’ imprisonment.

2. Two documents were filed in this Court by the applicant on 18 July 2014. One is a Form 28 application for extension of time within which to appeal; the other, a Form 26 notice of appeal against both conviction and sentence.  An extension of time pursuant to s 671(3) of the Criminal Code (Qld) is necessary, the time for appealing having expired on 10 September 2011.

3. The applicant is now 34 years old. When he was 17 years old, he suffered a severe head injury in an accident at a motocross event. The injury resulted in significant cognitive and behavioural deficits. The applicant has continued to suffer from them. His parents have been instrumental in preparing the documents to which I have referred.  His father, Mr Raymond Armstrong, lodged a letter with four substantive attachments to it in support of the application for the extension of time on 15 September 2014.

4. The application for an extension of time was heard on 24 October 2014. At the hearing, leave was granted to Mr Armstrong senior, to whom I shall refer as “Mr Armstrong”, to act as a McKenzie friend for his son.  Mr Armstrong sought leave to develop his submissions by reference to a file of documents and photographs that he had prepared dated 24 October 2014.  The Court permitted him to refer to the file for that purpose but reserved decision on whether the file was to be received formally into evidence.  He also referred without objection to his letter and the attachments to it, none of which were formally proved.

Factual basis for the conviction of manslaughter

5. The applicant was convicted of unlawfully killing Murray William Goodrich on 3 August 2009.  Mr Goodrich was a member of a road works team which was working on the Bruce Highway at Burpengary that evening.  The applicant lived at Burpengary at the time.  He was the owner of a BMW motor vehicle.  That evening he drove it on to an on-ramp that led to the northbound lanes of the highway.

6. The following remarks by the learned sentencing judge at sentence sufficiently explain the unchallenged factual basis on which the applicant was convicted and sentenced for manslaughter:

“Now, the road works were well and truly set up by that stage and it was only the left lane that was passable.  There were witches’ hats and signs to show that you weren’t to drive in the middle and the right-hand lanes.  But you went on to the on ramp and off it on to the highway into those lanes on the road that were closed.  You drove your vehicle mainly in the middle lane and you drove your vehicle to a point where you stopped where one of the traffic controllers saw you and he gestured with his light stick to the left to get you to go to the left and called out to get you to move out of the closed-off area and you didn’t.  Instead you accelerated away, and you remained in the closed-off area.

The Prosecutor read out some of the witness statements from the various witnesses in the cars that were in the left-hand lane and they attribute great speed to you of 100 kilometres an hour; 120 kilometres an hour; 140 kilometres an hour.  You were sounding your horn, you were behaving in a way that was not consistent with the road works or consistent with proper driving of the vehicle in the circumstances.  There is no doubt that you could not have ignored the existence of the road works.

No doubt your driving in the manner that you did was attributable to both your intoxication and to the consequences of your acquired brain injury that affected your ability to think and reason and exercise judgment.  You drove in the closed-off part of the road until you ran into a work utility at 9.45 pm on the 3rd of August 2009.

Mr Goodrich had gone to work that night like any other night, when he worked as a traffic controller at these road works, and he was on a break and was standing behind the utility.  He didn’t have time to move out of the way.  Your vehicle must have been travelling very fast.

The photographs that have gone into evidence show the damage that you did to your vehicle, but you shunted the utility forwards five metres.  Mr Goodrich was spun into the air and he landed on a median strip about 30 metres away from where he started.  He did not survive for very long at all.

Your vehicle spun out of control and ended up about 100 metres away; you had to be cut from the vehicle.  You suffered a fractured eye socket.  You were taken to hospital and after you were released from hospital, you were arrested on 13th of August 2009 and charged with the offences to which you have pleaded guilty today…”^[1]

Reasons behind the proposed appeal

7. It is now over three years since the applicant was convicted and sentenced. During that time, Mr Armstrong has carried out his own investigations from which he has developed a theory that his son did not, in fact, cause Mr Goodrich’s death.

8. According to the theory, there were two incidents that evening. The first was one in which Mr Goodrich was struck and injured by either a water truck or a broom tractor working on site. Mr Armstrong postulates that Mr Goodrich’s outer clothing was largely removed by the broom at the back of the tractor as it rotated and passed over his body. The second incident occurred later when the applicant’s vehicle rear-ended the traffic control utility.

9. The motive behind the proposed appeal for which an extension of time is sought is to secure a retrial for the applicant at which a defence consistent with this theory would be run.

The viability of the proposed defence

10. The theory underlying the proposed defence confronts the evidence of eye witnesses referred to by the learned sentencing judge. For this application, the Court does not have the materials that were available to her Honour. However, Mr Armstrong’s file sets out extracts from statements to police made by witnesses.^[2]  Mr Neil Lewis recalled having a conversation with Mr Goodrich after they had put lane closures in place.  He went off to do something else.  At that time Mr Goodrich was standing at the rear driver’s side corner of the traffic control utility.  Mr Frank Hankinson, the driver of the broom tractor, said that his machine travels only at about a walking pace.  At impact, he saw a male person thrown up into the air and into the centre median strip about 20 metres down the road.  Mr William Bayliss, the driver of a bitumen truck, said that he saw a car coming flat out in the northbound fast lane which was closed.  He followed it and as it tried to go between the stationary utility and the moving broom tractor, he saw the car hit something and then keep going before coming to a grinding halt about 30 metres beyond.  Photographic evidence showed extensive damage to the rear of the utility and to the front of the applicant’s BMW.

11. As explained by him to the Court, Mr Armstrong’s theory is dependent upon the accident in which Mr Goodrich was hit being one that occurred at 9.45 pm that evening. A DVD camera recording shows the applicant’s BMW entering the Bruce Highway at “9.48.30” that evening.  If the applicant did not drive on to the highway until then, it follows that he could not have been involved in an incident which took place on the highway a very short time earlier at 9.45 pm.  The theory also depends upon Mr Armstrong’s interpretation of marks on certain photographs of the road surface.  He says that they depict marks indicative of blood having been spread by tractor tyre treads and swept by a broom.  From that he has deduced that it must have been the broom tractor that struck Mr Goodrich.

12. It is true that the learned sentencing judge spoke of the applicant having collided with the utility at 9.45 pm. It is, however, evident that her Honour meant at about that time and not specifically at that time. Mr Bayliss said that he saw the BMW hit the utility at “about 9.45 pm”.  No witness put that event as having occurred at 9.45 pm.

13. The underlying premise for the theory that the incident in which Mr Goodrich was killed occurred precisely at that time is without any evidentiary support.  Notwithstanding Mr Armstrong’s oral submission that police were informed by telephone of an incident at 9.45 pm, there is nothing in the material assembled by him which establishes that such a call was received at that time.  Both ambulance and police records refer to initial calls at 9.56 pm.  As well, Mr Armstrong’s interpretation of marks depicted on the photographs is unsupported by any technical evidence from an appropriately qualified person.

14. The proposed defence lacks a sound evidential basis. It is unpersuasive on that account. Moreover, the theory on which it is based fails to address the compelling evidence of the witnesses which puts it beyond any real doubt that the applicant was implicated in the fatal accident. In short, the proposed defence lacks viability.

The sentence

15. Whilst an appeal against sentence is proposed, no ground of appeal against sentence is stated in the notice of appeal. No submission impugning the sentence was made at the hearing of the application. In summary, the application for leave to appeal against the sentence itself has not been actively pursued. In all these circumstances it cannot be granted. However, the application for an extension of time to appeal against conviction requires further consideration.

The test for an extension of time generally

16. It is well settled that on an application of this kind, the Court considers whether there is good reason to account for the delay in making the application and overall whether it is in the interests of justice to grant the extension.^[3]  The preceding discussion of the viability of the proposed defence is central to consideration of whether the interests of justice favour granting the extension.  Given that the proposed defence is not a viable one, it cannot be said that the interests of justice require the grant of an extension here.

17. Mr Armstrong referred to various causes for the delay in making the application: he and his wife live in New South Wales; they had to obtain paperwork from the applicant’s former solicitors; obtaining information from the Queensland Ambulance Service took some time; and they had limited financial resources.  Whilst it may be doubted that these factors together provide a satisfactory explanation for delay over the whole of the two years and 11 months that elapsed between conviction and sentence on the one hand and the filing of the application on the other, I would not have refused an extension of time to appeal against conviction on that basis alone.

Where there has been a plea of guilty

18. This application to appeal against conviction has the additional complexity that the applicant did plead guilty to the offences for which he was convicted and sentenced. He was represented by experienced criminal counsel and instructing solicitors at the time of his plea.

19. Speaking of a plea of guilty made in that kind of circumstance, Fraser JA (with whom Keane and Holmes JJA agreed) observed in R v Carkeet:^[4]

“[22]It is usually very difficult for an appellant to establish any miscarriage of justice in a conviction consequent upon the appellant’s plea of guilty. In Meissner v The Queen Brennan, Toohey and McHugh JJ said:^[5]

‘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.’

[23]That passage occurs in the course of a discussion about the question whether conduct designed to intimidate an accused person to plead guilty necessarily constitutes an attempt by the intimidator to pervert the course of justice even if the intimidator believes that the accused is guilty of the offence with which he or she is charged.  The Court was not there considering the issue that arises in this case, which is whether or not a person who had entered a plea of guilty in the exercise of a free choice nevertheless might establish that the conviction later should be set aside on the basis that it constituted a miscarriage of justice.

[24]When a person of full age and apparently sound mind and understanding enters a plea of guilty in open court in the exercise of a free choice, the circumstances in which that person might establish a miscarriage of justice resulting from the plea must be very rare indeed.  As the above quote from Meissner indicates, it is not sufficient to point to evidence that establishes that the person is in truth not guilty of the offence.”

20. Consistently with this approach, a viable defence, had one been available here, would not of itself warrant the grant of an extension of time to appeal against conviction. As the paragraphs cited comprehend, the authorities indicate that there are three circumstances in which a plea of guilty will be set aside. They are:

(a)that the applicant did not understand the nature of the charges and did not intend to admit guilt;

(b)that upon the admitted facts, the applicant could not have been guilty of the offence; or

(c)that the guilty plea was obtained improperly by inducement, fraud, intimidation or the like.

21. Neither (b) nor (c) are suggested in this case.^[6]  As to (a), on behalf of the applicant, reference is made to the report of Professor G A Broe dated 23 April 2001^[7] and to three sets of written instructions dated 17 November 2010, 28 April 2010 and 10 August 2011,^[8] all signed by the applicant.

22. Dr Broe’s report is now rather dated. He examined the applicant for a medico-legal assessment in April 2001. On examination, the applicant complained of recurrent pain which made attainment and retention of employment difficult, short-term memory loss, shortness of temper, episodes of depression, lack of motivation and restlessness. Dr Broe thought that after four years, there was little prospect of change and that the applicant was incapacitated from any form of paid employment.^[9]  Significantly, Dr Broe did not speak of impairment of brain function to a degree that the applicant could not make decisions concerning his life, even if he had parental or professional assistance in making them.

23. The earlier two sets of instructions, which are typed, were made when Legal Aid Queensland was acting for the applicant in the matter.  In the first of them, the applicant gave instructions that he wished to plead guilty to the manslaughter count.  His signature was witnessed by his mother.  In the document, the applicant confirmed that he and his parents had attended three conferences in which the evidence against him, the strength of the prosecution case and potential defences were discussed.  In the second of them, he withdrew the instructions for the purpose of investigating whether the driver of the broom tractor was responsible for Mr Goodrich’s death and to obtain an expert’s opinion on what the photographs might reveal with respect to the events that immediately preceded it.  The applicant’s signature to these instructions was witnessed and the applicant stated in them that he had read through them with his parents.  Upon receipt of those instructions, Legal Aid Queensland was unable to continue to act for the applicant.

24. The third set of signed instructions are handwritten. They were given on the day when the applicant did plead guilty. They refer to “conferences (held with) with my counsel and solicitor”; that the applicant understood the charges; and that he understood the facts relied upon to support the charges.  He gave instructions to plead guilty to all the charges to which he did in fact plead guilt later that day.

25. The applicant’s signature to this set of instructions was not witnessed. Nor do the instructions refer to his having discussed giving them with his parents. However, at the hearing of the application, Mr Armstrong informed the Court that he was present in court when the applicant pleaded guilty to the charges.

26. The applicant has not sworn that he did not understand the nature of the charges and did not intend to plead guilty to them. Furthermore, the sequence of instructions to which I have referred considered with Dr Broe’s report, does not ground an inference that the applicant neither understood the nature of the charges nor intended to plead guilty to them.

Disposition

27. The submissions made on behalf of the applicant have not established any circumstance for setting aside the plea of guilty in relation to his conviction for manslaughter or either of the summary offences. It has not been demonstrated that the interests of justice warrant a grant of extension of time to appeal against conviction. The application for an extension of time to appeal against conviction and sentence must therefore be refused.

Orders

28. I would propose the following orders:

1. Leave to adduce evidence by way of the file of documents handed to the Court at the hearing of the application refused.

2. Application for extension of time to appeal against conviction and sentence refused.

29. PHILIPPIDES J:  I have had the advantage of reading the reasons of Justice Gotterson and agree with the orders proposed.

30. McMEEKIN J:  I agree with the orders proposed by Gotterson JA and with the reasons given by his Honour.