Praljak v Commisoner of Police[2024] QCA 9

[2024] QCA 9

COURT OF APPEAL

Morrison JA

Boddice JA

Fraser AJA

CA No 85 of 2023

DC No 193 of 2022

PRALJAK, Adrian Applicant

v

COMMISSIONER OF POLICE Respondent

BRISBANE

TUESDAY, 6 FEBRUARY 2024

JUDGMENT

FRASER AJA:  On 16 May 2018, the applicant pleaded guilty in the Magistrates Court to a charge of unlawful stalking between 1 September 2015 and 30 July 2017.  No conviction was recorded and he was given a non-custodial sentence.  On 15 July 2022, the applicant filed a notice of appeal to the District Court under section 222 of the Justices Act 1886 (Qld) and applied for an extension of time within which to appeal.  The applicant also applied for leave to adduce new evidence in the District Court proceeding.

Section 222(2)(c) of the Justices Act confines the grounds of appeal by a person who pleaded guilty to the sole ground that the fine, penalty, forfeiture, or punishment was excessive or inadequate.  The effect of the applicant’s argument in the District Court, however, was that he should be granted leave to withdraw his plea of guilty in the Magistrates Court and the conviction should be set aside.  The judge who heard the matter rejected that argument, dismissed the application to adduce new evidence, and refused the application for an extension of time for filing the notice of appeal.

The applicant now applies for leave to appeal under section 118 of the District Court of Queensland Act 1967 (Qld) and for leave to adduce additional evidence.

The application for leave to adduce additional evidence identifies 19 people who the applicant wishes to call to give evidence.  Under the headings “Details of the evidence” and “Nature of the evidence to be adduced”, the application relevantly states only that the applicant wishes to engage in a lengthy cross-examination of the witnesses.  An affidavit sworn by the applicant states that he seeks leave to call the witnesses “purely for lengthy; ‘Cross-Examinations’”.  There is no basis for thinking that any of the proposed witnesses could give any evidence that might be relevant.  The application to adduce additional evidence should be refused.

The applicant argues there was a reasonable apprehension of bias on the part of the District Court judge.  The suggested basis for this argument is contained in two emails the applicant sent to the judge’s associate before the hearing.  The emails purport to state biographical information about the judge.  The applicant’s argument assumes there is something sinister in that information, or at least in so much of it as concerns the judge’s purported associations with a university and a law firm.  Apparently upon that assumption, the applicant’s second email makes allegations of unlawful and corrupt wrongdoing by the judge.  No particulars of the allegations are given and there is not a scintilla of evidence to justify any of them.  Nor is there even evidence that the apparently innocuous biographical information in the emails is correctly attributed to the judge.  The judge informed the applicant it was not correctly attributed to his Honour.  There is no substance in the applicant’s challenge to the judge’s conclusion that the application for the judge to recuse himself was baseless.

The applicant challenges the District Court judge’s decision to refuse the application to adduce “fresh evidence”.  There is no merit in that challenge.  The judge set out the evidence the applicant wished to adduce.  It comprised reports of inquiries and statements made by the applicant to other people.  None of those matters had any relevance to the issues in the District Court proceeding.

The issue in the proposed appeal to this court would be whether the District Court judge erred in deciding that the applicant should not be granted leave to withdraw his plea of guilty.  It is not necessary to consider the jurisdiction or power of the judge to make such an order.

An applicant who seeks leave to withdraw a guilty plea bears the onus of persuading the court that a conviction entered upon the basis of the plea involved a miscarriage of justice: see R v Knudson [2021] QCA 267 at [43].  As the District Court judge observed, in Meissner v The Queen (1995) 184 CLR 132 at 141, Brennan, Toohey and McHugh JJ explained that:

“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.”

There is no evidence that the applicant was not of sound mind and understanding when he entered his plea.  Such evidence as appears upon the record supports the conclusion that he entered his plea in the exercise of a free choice in his own interests.  The applicant was himself admitted as an Australian lawyer in 2009, and he had been employed as a lawyer on and off after he was admitted.  He was represented by a lawyer in the Magistrates Court proceedings.  On 2 March 2018, the applicant, through his lawyer, indicated to the Magistrates Court that he was going to plead guilty.  An endorsement on the Bench Charge Sheet records that at a mention on 9 March 2018, by consent, the applicant was remanded to appear on 16 May 2018 for a plea of guilty.  The transcript of the hearing on 16 May 2018 reveals that the applicant personally entered an unequivocal plea of guilty.

The applicant did not challenge and does not now seek to challenge the evidence of his communications to the complainant.  That evidence established a strong prosecution case that the applicant was guilty of the charged offence.  The applicant was present throughout the sentence hearing and did not object to any of the submissions made by the prosecutor and by his own lawyer, which were premised upon the applicant being guilty of the offence.  The prosecutor quoted extensively from the electronic communications the applicant sent to the complainant which formed the basis for the charge of unlawful stalking.  The applicant’s solicitor made submissions at the sentence hearing that the applicant was “deeply ashamed of the way that he communicated with [the complainant]”.  She acknowledged that some of the messages included obscene assertions and the majority of the messages amounted to the applicant expressing his devotion to the complainant, which devotion was admittedly not returned.  She acknowledged that the applicant had responded to his feelings about his relationship with the complainant not being exclusive “in an appalling way and sent the sheer volume of messages he [understood] would have caused her annoyance”, and “she obviously would have interpreted [the messages] as obsessive and harassing behaviour”.

The applicant argues the District Court judge erred in rejecting his argument that he was prejudiced by the Magistrates Court’s failure to make some accommodation for serious medical conditions from which he suffered.  The applicant’s notice of appeal to the District Court included a ground that the applicant’s “acrophobia prevented him from self-representing and being able to engage in an unequivocal plea of either guilty or not guilty”.  In relation to this topic, the District Court judge recorded that, on 22 March 2018, the applicant sent an email to the Magistrates Court asking for his appearance to be excused and that he be allowed to appear by phone or at a hearing on the ground floor.  A magistrate’s refusal of those requests was communicated to the applicant and his lawyer on 26 March 2018.  The applicant’s appearance in person was required. The District Court judge recorded that the reasons for the refusal of the applicant’s requests were that the courts were on level one, and court records showed the applicant had appeared before in the courts with no issue being raised, and that the applicant was informed that a medical certificate should be provided to the court on the next occasion to raise any issue.

In the District Court proceedings, the applicant relied upon a medical certificate from a clinical psychologist dated 26 March 2018 to the effect that the applicant was unfit to engage in any “situations” which were not on the ground floor. The judge observed that there was no suggestion that the medical certificate was given to the Magistrates Court, the applicant was not prevented from being represented by a lawyer, he had in fact been represented by a lawyer when he entered his plea of guilty, and he did not dispute that he had previously appeared in a court on a higher floor of the same building without apparent difficulty.  The judge concluded that the applicant’s material did not include any evidence of a link between his medical condition and his decision to plead guilty.  No such link could be inferred in the circumstances identified by the judge.  The applicant’s argument about the medical condition could not justify taking the strong step of allowing the applicant to withdraw his guilty plea.

The grounds of the application for leave to appeal include allegations that the applicant was innocent, the charge was malicious and unlawful, the alleged facts were incorrect or incomplete and taken out of context, the plea of guilty was entered under unlawful duress, and he was denied effective legal representation.  The applicant made no attempt to give particulars of these allegations and none of them is supported by evidence.

The applicant fell far short of fulfilling the onus upon him of establishing that a miscarriage of justice was occasioned by the entry of a conviction upon the basis of his plea of guilty.  No arguable error has been established in the careful reasons of the District Court judge for refusing to extend time for the applicant to appeal to that court.  It is therefore not necessary to discuss the effect in a proposed appeal to this court of the restrictions upon challenges to findings of fact made by a District Court judge exercising appellate jurisdiction: see McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39](e) to (g).

The applicant also seeks to invoke section 188 of the Penalties and Sentences Act 1992 (Qld) and section 147A of the Justices Act.  As the District Court judge explained, neither of those provisions authorised the judge to grant leave for the applicant to withdraw his plea of guilty or quash the conviction.

I would order that the application for leave to appeal and the application to adduce additional evidence be dismissed.

MORRISON JA:  I agree.

BODDICE JA:  I agree.

MORRISON JA:  The orders of the Court are that the application for leave to appeal is dismissed; the application to adduce additional evidence is dismissed.  Adjourn the Court.