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R v Appleton[2017] QCA 125

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Appleton [2017] QCA 125

PARTIES:

R
v
APPLETON, Linda Eileen
(applicant)

FILE NO/S:

CA No 13 of 2017

SC No 1219 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 14 October 2016

DELIVERED ON:

9 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2017

JUDGES:

McMurdo JA and Byrne SJA and Burns J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL – EXTENSION OF TIME – where the applicant pleaded guilty to murder on the fifth day of her trial – where the applicant also pleaded guilty to two counts of deprivation of liberty and one count of interference with a corpse at the commencement of her trial – where the applicant was sentenced to life imprisonment with a non-parole period of 23 years with respect to the count of murder – where the applicant applied for an extension of time to appeal against the conviction for murder – where the application was instituted almost three months after the expiration of the time specified in s 671(1) of the Criminal Code (Qld) for the commencement of an appeal against conviction – whether there are good reasons for the delay in filing the notice of appeal – whether it is in the interests of justice to extend time – whether there is merit in the proposed appeal – whether the applicant should be granted leave to vacate her plea of guilty to murder – whether a miscarriage of justice has occurred

Criminal Code (Qld), s 671(1)

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, followed

R v Amundsen [2016] QCA 177, cited

R v Phillips [2017] QCA 88, cited

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

R v Wade [2012] 2 Qd R 31; [2011] QCA 289, cited

COUNSEL:

The applicant appeared on her own behalf

P J McCarthy for the respondent

SOLICITORS:

The applicant appeared on her own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. McMURDO JA:  I agree with Burns J.
  2. BYRNE SJA:  I agree with Burns J.
  3. BURNS J:  On 14 October 2016 the applicant, Linda Appleton, together with her co-accused, John Harris, pleaded guilty to the murder of Tia Landers on 16 June 2014.  It was the fifth day of their trial in the Supreme Court at Brisbane.
  4. A week later, Appleton and Harris were sentenced.  The mandatory sentence for murder of life imprisonment was imposed on each and, in Appleton’s case, a non-parole period of 23 years was specified.  Lesser periods of imprisonment were imposed with respect to the other counts that appeared on the indictment and to which Appleton and Harris had pleaded guilty at the commencement of the trial (two counts of deprivation of liberty and one count of interference with a corpse).
  5. Appleton now applies for an extension of time to appeal against the conviction entered in consequence of the plea she entered on the fifth day – that is to say, her conviction for murder.  The notice of application for extension of time and proposed notice of appeal were completed by Appleton on 7 February 2017 and filed three days later.  Her application was therefore instituted almost three months after the expiration of the time specified in s 671(1) of the Criminal Code (Qld) for the commencement of an appeal.
  6. In order to obtain the extension that is sought, it is necessary to show good reason for the delay in filing the notice of appeal within time and that it is in the interests of justice to extend time.  Whether it is in the interests of justice to grant an extension will usually depend on a provisional assessment of the merits of the proposed appeal, any prejudice to the Crown and the length of the delay (R v Phillips [2017] QCA 88 at [14] per Boddice J, citing R v Amundsen [2016] QCA 177 at [7] and R v Tait [1999] 2 Qd R 667 at [5]).
  7. As to the delay in filing the notice of appeal, Appleton claims by way of explanation to have been unaware that she could appeal against her conviction until she spoke to an “appeals officer” about her sentence appeal.  Precisely when that conversation took place is not made clear, but it must have been shortly prior to the completion of her notice of application for extension of time and proposed notice of appeal on 7 February 2017.  Her application for leave to appeal against sentence (presumably, the non-parole period) was filed much earlier, and within time (8 November 2016).  That was done on her behalf by her then solicitor.  If Appleton believed (as she now maintains) that she was wrongly convicted, it is difficult to understand why this grievance was not also raised with her solicitor at the time when instructions were being taken about her sentence, and yet that is what is implied by her claim to have only become aware of her rights regarding the conviction when she spoke to the “appeals officer” some months later.
  8. That, however, is the least of Appleton’s problems.
  9. The Court will not extend time unless there is merit in the proposed appeal and, as far as I can see, there is none. Furthermore, even if some merit could be demonstrated, Appleton also requires the Court’s leave to vacate her plea.
  10. Before leave to go behind a plea of guilty so as to entertain an appeal against conviction will be granted, the Court must be satisfied that a miscarriage of justice has occurred (R v Wade [2012] 2 Qd R 31 at [51] per Muir JA).  But, here, it cannot be said that Appleton misunderstood that she was pleading guilty to murder or that she could not, in law, have been liable to conviction for that offence.  It was not, for instance, submitted that she could not have been found guilty of murder on the evidence that had already been adduced in the Crown case or that her plea of guilty had in some way been improperly obtained or induced.  Her plea constituted an admission to each of the essential ingredients of the offence of murder and, despite the claims she made in support of this application to the effect that she felt threatened by the victim’s family, I am unpersuaded that the entry of her plea was other than entirely voluntary.  Indeed, Appleton’s plea was only taken after the trial judge enquired of her counsel whether that was the course she wished to take, and she had nothing to say after the allocutus was administered.
  11. That Appleton changed her plea in the face of what was an overwhelming Crown case is unremarkable.  On the previous day, two eye-witnesses (and the complainants on the deprivation of liberty counts), Jake McKenzie and Ryan Morgan, gave damning testimony about Appleton’s active participation in what was a concerted, sustained and merciless attack on the victim that took place over the course of three or four hours and which culminated in Harris shooting the victim dead.  Later that day, recordings of telephone calls made by Appleton prior to her release from custody and only seven days prior to this attack were played to the jury.  The recurring theme was the serious harm Appleton intended to cause the victim on her release (e.g., “I’m going to fucking bust this bitch so fucking bad”, “I’m going to smash her fucking skull in”).  Indeed, in her notice of appeal, Appleton wrote:

“I plead guilty just to end the trial as a phone call played made me sound guilty and like I had no hope and my partner’s daughter had just walked in the court and we were about ready to see crime scene photos and didn’t want her or the victim’s family exposed to them.”

  1. Similar statements appear in the notice of application for extension of time as well as in the written submissions Appleton filed in advance of the hearing and, with the leave of the Court, subsequently (on 29 May 2017).  Taken together, these statements establish that Appleton decided to plead guilty after weighing her prospects of avoiding conviction.  That there may have been additional reasons is hardly to the point.  As Dawson J observed in Meissner v The Queen (1995) 184 CLR 132 at 157, a person may plead guilty:

“[For] all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.”

  1. Otherwise, the complaints made by Appleton in the two notices filed on 10 February 2017, her written submissions (before and after the hearing) and during her oral submissions at the hearing may be summarised as follows:
  1. although freely admitting that she assaulted the victim, she did not “physically kill” her because, she maintained, none of the violence she inflicted caused her death;
  2. she had no intention or plan to kill the victim and, as such, could only be guilty of manslaughter;
  3. she was intimidated by Harris into acting in the ways she did on the day of the murder and was acting under “duress”;
  4. she was affected at the time by a “cocktail” of drugs as well as fatigue;
  5. she was also affected by a “drug induced schizophrenia, anxiety and multiple personalities” as well as a bipolar disorder and, at the time of the murder, had ceased taking her prescribed (anti-psychotic) medication;
  6. many aspects of the evidence given by McKenzie were inconsistent with the autopsy findings, inherently improbable or outright lies;
  7. McKenzie’s evidence, taken as a whole, was unreliable and, if Harris was “allowed to testify”, he would “clear up … a lot of Mr McKenzie’s lies [and] inconsistencies”;
  8. some aspects of the evidence given by Morgan were wrong;
  9. the statements she made during the recorded telephone calls prior to her release from custody should not have been relied on because she was “angry” and did not really mean what she had said;
  10. similarly, the statements she made to an undercover police operative in the Redcliffe watchhouse following her arrest should not have been relied on because she had only 20 minutes prior to her arrest ingested a quantity of methylamphetamine;
  11. her barrister had not represented her effectively;
  12. she had (in some unspecified way) lost out on the benefit of a proposed “deal” whereby, if Harris pleaded to murder, the Crown would not pursue her on the count of murder provided she pleaded guilty to manslaughter.
  1. Of these complaints, all but (k) and (l) were matters that could have been ventilated at trial had Appleton chosen to maintain her plea of not guilty, but she did not.  The complaint about her barrister is not supported by a review of the record.  The complaint about the so-called “deal” has no substance – Appleton herself accepted that she was informed there was “no such deal” before entering her plea of guilty to murder and, given the strength of the Crown case and the active role Appleton played in this dreadful crime, it is most unlikely that any such proposal was ever put.
  2. It follows that no miscarriage of justice has been demonstrated and, as such, leave to vacate her plea should be refused.  The application for an extension of time ought to be refused.
Close

Editorial Notes

  • Published Case Name:

    R v Appleton

  • Shortened Case Name:

    R v Appleton

  • MNC:

    [2017] QCA 125

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Byrne SJA, Burns J

  • Date:

    09 Jun 2017

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC1219/1614 Oct 2016Date of Conviction.
Appeal Determined (QCA)[2017] QCA 12509 Jun 2017Application for extension of time to appeal against conviction refused: McMurdo JA, Byrne SJA and Burns J.

Appeal Status

Appeal Determined (QCA)

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