C T G v The Queen
[2011] VSCA 429
•14 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2007 0955
| C T G | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P |
WHERE HELD: | MELBOURNE |
DATES OF HEARING: | 21 April, 26 May, 27 October 2010; 30 November 2011 |
DATE OF JUDGMENT: | 14 December 2011 |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 429 |
JUDGMENT APPEALED FROM: | R v [C T G] & [C F] (Unreported, County Court of Victoria, Judge Wilmoth, 18 December 2007) |
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CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal – Application for extension of time – Plea of guilty – Whether plea of guilty can be re-opened – Whether exceptional circumstances – Whether miscarriage of justice established – Allegations that complainants admitted lying – No supporting evidence – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell SC with Ms D I Piekusis | Mr C Hyland, Solicitor for Public Prosecutions |
| The Applicant appeared in person | ||
MAXWELL P:
This is an application for an extension of time within which to file a notice of leave to appeal against conviction. The applicant is unrepresented on this application. The applicant is represented in relation to his sentence appeal (which is discussed further below).
The applicant applied for legal aid for the present application, but was unsuccessful. An internal review of the decision to refuse legal aid confirmed the original decision. As will appear, however, Victoria Legal Aid has assisted the applicant, at the Court’s request, with the investigation of one of the key matters in issue.
For reasons which follow, I would refuse the application for an extension of time.
Background
On 31 May 2007, the applicant pleaded guilty to six counts of maintaining a sexual relationship with a child under the age of 16 to whom he was not married. There were two complainants, to whom I shall refer as ‘C1’ and ‘C2’. On 21 September 2007, the matter was listed for a change of plea application, to be heard on 1 October 2007. That application was withdrawn during the course of the hearing, in circumstances to which I will refer.
The applicant’s wife was found guilty by a jury on 18 October 2007 of 18 counts of incest, 19 counts of committing an indecent act with, or in the presence of, a child under the age of 16, and one count of counselling and procuring a child to take part in an act of sexual penetration. These charges related to the same two complainants.
The applicant and his wife were both sentenced by Judge Wilmoth on 18 December 2007. Each of them filed an application for leave to appeal against sentence, and each was granted leave to appeal.
The sentence appeals were listed to be heard together on 21 April 2010, before Buchanan JA and myself. On 10 March 2010, the applicant filed the present application (for extension of time within which to lodge a notice of appeal against conviction) and a notice of application for leave to appeal against conviction. The Crown responded by filing a supplementary outline of submissions, opposing the application for extension of time. In light of the applicant’s plea of guilty, it was submitted, the application had no reasonable prospects of success.
At the hearing on 21 April 2010, the applicant outlined a number of matters which he said bore upon the circumstances in which he had pleaded guilty and hence were relevant to his conviction appeal. He indicated that he did not wish to proceed with his sentence appeal until the matter of the conviction appeal had been resolved. Buchanan JA and I concluded that both sentence appeals must be adjourned to a date following the resolution of the applicant’s extension of time application and, if that application were successful, his conviction appeal. Naturally, the applicant’s sentence appeal would lapse if his conviction were overturned.
26 May 2010 hearing
The extension of time application came on for hearing on 26 May 2010. The applicant informed the Court that, since the 21 April hearing, he had made a complaint against members of the Victoria Police to the Ethical Standards Department (‘ESD’) of Victoria Police. He provided to the Court and to senior counsel for the Crown a copy of a letter of acknowledgment of the complaint from the ESD dated 13 May 2010. As a result, I directed the Crown to ascertain from the ESD such information as that Department was able to provide about the nature and scope of the investigation and its likely timetable, in order for the Court to determine its relevance (or otherwise) to this application. (I return to this matter later in these reasons).
A second development at that hearing was that senior counsel for the Crown drew attention – quite properly – to authorities relevant to the present applications. Those authorities show that, on an application such as this following a plea of guilty, the Court must, with the assistance of the prosecution, examine the evidence which would have been led against the defendant had he gone to trial.
The Crown drew attention to the decision of the Court of Criminal Appeal in England in R v Forde[1] and to decisions of the Full Court in R v Murphy[2] and of the Court of Criminal Appeal in R v Sleddon[3] and subsequently in R v Holden.[4] During the course of the hearing I drew the applicant's attention to the following passage from Murphy,[5] as defining the scope and nature of the inquiry:
This ground appears to be an invitation to this Court to disregard the plea of guilty and to determine for itself, without the aid of a jury, the guilt or innocence of the applicant upon the depositions in the committal proceedings supplemented by such additional facts as she has deposed to before us. It would, we think, be a sufficient answer that, until grounds are shown in accordance with the rules formulated in R v Forde for disregarding the plea of guilty, it is not the function of this appellate Court to try the issue of guilt or innocence. However … in case it became apparent that some miscarriage of justice had occurred, we have given consideration to the evidence adduced in the committal proceedings and the further evidence given before us by the applicant. In the result we are satisfied that a prima facie case of guilt has been made out and that it would clearly have been open to a jury to have convicted on such evidence.[6]
[1][1923] 2 KB 400.
[2][1965] VR 187 (‘Murphy’).
[3](Unreported, Court of Criminal Appeal, 11 June 1992).
[4][2009] VSCA 254.
[5]Murphy [1965] VR 187.
[6]Ibid 188.
I directed that the Crown file and serve a supplementary submission, addressing the question of the sufficiency of the evidence to establish the case against the applicant on the counts to which he pleaded guilty. The applicant was given an opportunity to prepare a submission in response.
27 October 2010 hearing
At the resumed hearing on 27 October 2010, I asked the applicant about a statement which he had made on more than one occasion, including in his written material,[7] that both of the complainants had ‘confessed to lying about the accusation that the whole of the family sexually abused them.’ The applicant responded by stating that the complainants had indeed publicly admitted to fabricating their allegations against him, and that he could produce evidence from at least one individual who had witnessed an admission to that effect.
[7]See [16] and [27] below.
If true, this was a matter of the utmost significance to the applicant’s putative conviction appeal. Accordingly, I requested the Crown to make enquiries as to whether there was any record of such an admission having been made by either complainant. I directed the applicant that the evidence he foreshadowed should in the first instance be obtained in the form of a statutory declaration.
Subsequently, the applicant filed further submissions on 9 and 12 November 2010; and the Crown filed an affidavit on 1 December 2010. The applicant, through his brother-in-law, also arranged for four of his children to file statutory declarations in November – December 2010. The brother-in-law filed a number of statements and affidavits in December 2010. With one exception,[8] the thrust of the evidence filed by the applicant was that it was either impossible or improbable that these offences were committed.
[8]See [19].
Miscarriage of justice
Had the applicant been able to substantiate his assertion that the complainants (or either of them) had admitted fabricating their allegations against him, that would have established that a serious miscarriage of justice had occurred. As will appear, however, there was nothing in the material subsequently filed to suggest that any such admission was ever made.
The affidavit filed by the Crown contained the following statement from the officer in charge of the Rosebud Crime Investigation Unit:
I have interrogated our LEAP records and neither [C1] nor [C2] have been complainants (victims) in any criminal matter involving the applicant’s children. Neither myself or [the informant] have been advised about any retraction of allegations made by [C1] or [C2].
The Crown’s instructing solicitor at the trial of the applicant’s wife stated that she was not aware of any other Court proceedings in which the complainants were involved as complainants against the applicant’s children. Further, neither complainant had retracted any of the allegations against the applicant or his wife during the latter’s trial. To the contrary, each of the complainants had given evidence at that trial along the lines of what was contained in their statements.
The applicant’s daughter filed a statutory declaration dated 23 November 2010. She alleges that from 2002 to 2006 C1 was sexually abusing her, and ‘in 2003 he started threatening that if I ever told anyone that he would just accuse the parents [of abusing him]’. She followed the advice of her counsellor to speak up, although it appears she did not make a formal complaint at that stage.
Subsequently, on 6 December 2006, police came to her house, presumably in relation to allegations made by C1 against the applicant. She states that she later received a telephone call from C1 in which he ‘told me that if I had kept my mouth shut and not said anything then none of this would be happening and he would not have had to follow through with his threat’.
Taken at its highest this (untested) material suggests that C1 may have had a motive for concocting allegations against the applicant and his wife. But, at best for the applicant, this was an issue which would have gone to the credit of C1 had the applicant decided to contest the charges brought against him on the basis of C1’s allegations. But he decided not to contest them. There is no reason to doubt that the applicant was aware of his daughter’s allegations regarding C1 at the time he decided to plead guilty. As will appear, it was in the course of the hearing about his change of plea that the applicant first alleged that the complainants had lied.
Investigation into whether the complainants admitted lying
The applicant maintained, however, that there was additional material which would assist him to demonstrate that the complainants had admitted to lying. In order to enable this question to be resolved, I requested that Victoria Legal Aid consider assisting the applicant for the sole purpose of investigating whether the complainants had admitted lying. In March 2011, Victoria Legal Aid agreed to act for the applicant for this limited purpose.
Subsequently, by letter dated 5 September 2011, copied to the applicant and to the Office of Public Prosecutions, the Director of Criminal Law Services at Victoria Legal Aid advised as follows:
VLA has completed its investigations and advised [the applicant] of the outcome. We are instructed to write to inform you that no further material will be filed with the court in support of [the applicant’s] extension of time application. VLA will now cease its involvement in [the applicant’s] conviction appeal.
The applicant sought a final hearing, to which I will refer below.
The applicant’s submissions on the extension of time application
The applicant has filed detailed written submissions, which deal with his grounds of appeal against conviction, the circumstances surrounding his plea of guilty, and his account of events the subject of the counts to which he pleaded guilty. According to the applicant, he initially told his legal representatives that he wanted to plead not guilty. He then told his solicitor that his wife was pressuring him to change his plea from not guilty to guilty:
I told [my solicitor] that I intended to plead guilty and go to the Children’s Court and get [the complainants’] confession that they lied about the accusation against [my wife] and I, then submit it to the County Court to clear [my wife] and I.
How come when I told [my solicitor] this, that she did not tell me that I could not submit any evidence or confession from the Children’s Court into the County Court? Why didn’t [my solicitor] tell me this? Why didn’t [my wife’s] solicitor [] and barrister [] tell [her] this.
[When we went to Court on 31 May 2007] [my wife] again asked me if I am going to plead guilty to support her to help protect and clear the 3 boys in the Children’s Court. I told [my wife] that I would and that I promised.
The applicant’s position is that he decided to plead guilty in order to assist his sons in proceedings in the Children’s Court; that he expected a ‘confession’ from the complainants that their accusations against him and his wife were false; and that he would be able to ‘submit’ such confessions to the County Court to clear their names. The applicant also maintains that he believed his wife would plead guilty, to help their children. In the event, however, his wife pleaded not guilty to all the charges against her on the basis of marital coercion.
I deal later in these reasons with the applicant’s decision to change his plea to not guilty, and his subsequent reversal of that decision. Of those events the applicant now says:
After the Children’s Court cleared my 3 sons of serious sexual allegations, where both [complainants] confessed to lying about the accusation that the whole of the family sexually abused both [of them].
I told [my second solicitor] that I wish to change my plea from guilty to not guilty. He said that I have that right on the day of my hearing to change my plea to not guilty, that he [could] subpoena [my first solicitor] to testify that I told her I was pleading guilty to save the children from the trauma of a court trial.
But that was not the case at all. Then Judge Wilmoth said that if I was successful with my application to change my plea to not guilty, I would then have to run my trial parallel to [my wife’s] trial.
…
[When I asked what the judge meant, my legal representatives] said that it means that if you run the trial, you would have to prove that not only prove [the complainants’] claim to be false, but that [my wife’s] [defence of] marital coercion is a lie.
I said to [my legal representatives] that I could not go against [my wife], even though I could prove that the [defence of] marital coercion is a lie.
…
I told [my legal representatives] that I would have no choice but to remain on a guilty plea, to protect [my wife] who is innocent.
In explanation of the delay in seeking to appeal his conviction, the applicant says:
I told [my solicitor] 2 days after being sentenced that I am not guilty and I wanted him to get me out, that I wanted to appeal against conviction and had been telling [him] this from the end of December 2007 …
Appeal against conviction following a plea of guilty
While the fact that an applicant has pleaded guilty does not prevent this Court from granting leave to appeal against conviction, a plea of guilty will only be re-opened on appeal in exceptional circumstances.[9] Thus, such an appeal may be entertained where either:
·the applicant did not understand the nature of the charge or did not intend to admit that she/he was guilty of it; or
·upon the admitted facts she/he could not in law have been convicted of the offence charged.[10]
[9]R v D M [2007] VSCA 155, [19] (Whelan AJA, with whom Buchanan and Nettle JJA agreed).
[10]R v Forde [1923] 2 KB 400.
These grounds are not exhaustive, however, as noted by Callaway JA in R v Coffey:[11]
Those alternatives have not, in this State, been regarded as exhaustive. The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice … There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty.
[11](2003) 6 VR 543, 545–546.
It is for the applicant to persuade the court that there has been a miscarriage of justice, and the burden on the applicant is a heavy one.[12]
[12]See R v Collis (1989) 43 A Crim R 371, 374.
Did the applicant intend to admit his guilt?
The applicant’s change of plea application was heard before the sentencing judge. During that hearing he gave evidence that:
·he understood the nature of the counts to which he had pleaded guilty;
·before he entered his plea of guilty, it had been explained to him what it meant to plead guilty;
·he had pleaded guilty, and his wife had done likewise, because they believed that this would enable them to expose the complainants as liars, when they came to give evidence in the Children’s Court proceeding; and
·he believed that the complainants would only appear by video in the County Court proceeding, and so could not be cross-examined. Therefore, he believed, it was necessary to ensure that the complainants gave evidence in the Children’s Court proceeding.
The relevant excerpts of his evidence are as follows:
Perhaps if you could explain again, because I don’t think it’s very clear what did you think you were achieving by pleading guilty to these offences on 31 May? - - - So that when we go to the Children’s Court that we didn’t need to get up on the stand and we could get [C1] and [C2] up on the stand, and then they would confess to them lying and then we could take the evidence to there and use it in the County Court for own defence, but we weren’t allowed to get [C1] and [C2] up on the stand.
Perhaps, tell her Honour this, what are these Children’s Court proceedings that you’re talking about? - - - Well, they’re in relation to accusation made by [C1] and [C2] against my other children, three boys in particular of sexual rape. My oldest boy was facing eight counts of rape of [C1].
…
Why did you think pleading guilty in this court was, in any way, going to assist the situation in the Children’s Court? - - - It was just an idea in order to try and get [C1] and [C2] up on the stand because . . .
Tell me, in your mind, how was this idea going to play out? - - -Because the fact is that I’ve been told that [C1] and [C2] would only appear on video here and couldn’t be cross-examined, so I thought, well, we need to get them up on the stand to speak in court and so this is where the idea of coming up with the Children’s Court because all the children will be up on the stand, giving evidence in the Children’s Court, and then the truth would come out.
The applicant further gave evidence that:
·at the time he made the decision to plead guilty, he felt he was in a position where he could make that decision;
·he knew that, if he pleaded guilty, he would receive a discount on his sentence for doing so; and
·he had signed a document acknowledging that he knew he had a right to plead not guilty.
The relevant part of that document was in these terms:
I, … hereby instruct my solicitor, and my counsel, to enter a plea of guilty to six counts of maintaining a sexual relationship with both [C1] and [C2]. I give these instructions on the basis that I do not want to put my children through any stress and that by ending this matter as soon as possible I will save them a certain degree of stress. I want to protect my children. I understand that the case against me is very strong. I also understand that my wife has given her legal representation her own instructions which may place more blame on me. I have received advice from my legal representation of my right to proceed with a trial and pursue a defence of not guilty and it is in full knowledge of this advice that I give these instructions today.
After the luncheon adjournment, the applicant was recalled by his own counsel. He then informed the court that he wished to withdraw the application to change his plea. He expressly stated that he had not been coerced into withdrawing the application and that he had made the decision after thinking about ‘all the issues that have been discussed’.
It is clear, in my view, that the applicant did appreciate the nature of the charges against him, and did intend to plead guilty to them, in full knowledge of the consequences of doing so.
Did the evidence support a conviction?
As directed, the Crown filed a table of evidence linking the evidence contained in the depositions and the complainants’ statements to the six counts to which the applicant pleaded guilty. In my opinion, that evidence was quite sufficient to establish three separately identifiable incidents in relation to each count. They are all counts of ‘maintaining a sexual relationship with a child under the age of 16 to whom he was not married’.[13]
[13]Crimes Act1958 (Vic) s 47A. See R v S L J [2010] 24 VR 372.The name of the offence was changed by the Crimes (Sexual Offences) Act 2006 (Vic). It is now ‘persistent sexual abuse of a child under the age of 16’.
On this application, the Crown’s case is to be taken at its highest. I am quite satisfied that the applicant could have been convicted on the evidence which would have been led at his trial.
30 November 2011 hearing
As noted earlier, the letter of 5 September 2011 from Victoria Legal Aid stated that the applicant had requested one further opportunity to make oral submissions and that his application then be determined on the basis of the material already before the Court. A final hearing was therefore held on 30 November 2011.
At the hearing, the applicant outlined what were, in his view, inconsistencies in the evidence of the complainants. These inconsistencies, he argued, demonstrated that he was innocent of the offences to which he pleaded guilty. He also referred to a witness, N. The applicant had previously stated that N was a witness to an admission by C1 that he had made up these allegations. The applicant stated that N was now refusing to provide an affidavit or statutory declaration confirming the retraction, but had not denied that it took place.
The applicant also referred to a recent hearing before Judge Smallwood in the County Court, which related to a person whom I will refer to as ‘S’. According to the applicant’s written materials, S is the daughter of a woman to whom he was previously married (R). This was the first time in the course of the multiple hearings before me that the applicant’s oral submissions had attached significance to the part allegedly played by S. (What follows is taken from the applicant’s written materials and from the transcript of the hearing before Judge Smallwood, which the Court obtained after the applicant raised these matters.)
S lived with the applicant and R prior to their separation in 1997. It appears that S also resided with the applicant from some time after the separation until 1999. According to the applicant, S and her brother returned to live with R in 1999, when the applicant moved in with his current wife (that is, at the same time as complainants C1 and C2 commenced living with the applicant).
At the 30 November hearing, the applicant made the following statements in relation to S:
APPLICANT: The information that’s come to light since, especially since I’ve had this other court hearing at the County Court, is the fact that the person that was the accuser is now facing extreme perjury charges, as well as conspiracy to pervert the course of justice charges, as directed by Judge Smallwood. …
HIS HONOUR: Who has been charged with perjury and perverting the course of - - -
APPLICANT: [S], according to the judge, which I’ve documented in here, at the hearing about two or three weeks ago, 2 November to be exact, it was stated there a conspiracy to pervert the course of justice and he will not be issuing a certificate in the matter of the perjury, nor would he be considering a suspended sentence. In actual fact, the statement by the judge said that the person will be serving time. This person has been extensively involved with [C1] and [C2] since 1999 on a regular basis, on an almost daily basis.
…
APPLICANT: The fact is that the information that I've been accused of and the conviction that I've been accused of is lies, they are untrue. It was proven recently in the County Court that it was abuse and total untrue (indistinct) perjury and a conspiracy. This perjury and conspiracy not only related to the accuser, who also (indistinct) in actual fact, [S], in actual fact, made a statement to the Victoria Police stating that myself and my sons were sexually abusing [C1] and [C2]. They have since confessed that my sons did not participate in any such meetings at all. The thing is that [S] perjures herself with lies in her statement to the Victoria Police in respect to [C1] and [C2]. [S] instigated, coerced and encouraged [C1] and [C2] to make the statement on the same period of time, 24 January 2007.
It appears that when S was living with R and the applicant, she complained to DHS and the police that she had been sexually abused by the applicant, R and her brother. The allegations were first raised by S in around 1995, when she was aged 14, but she claimed the offending had begun when she was about six years old. The applicant (and probably R) were interviewed by police, and a search warrant was executed at their house. (It is not possible to say exactly what occurred because many contemporaneous records have been destroyed or misplaced.)
In 1995, S withdrew the complaints she had made against her parents, by a handwritten letter to a DHS worker. She later claimed she did this because she wanted to return home, and that her parents had told her to write the letter. Ultimately, in 1997, she made a ‘statement of no complaint’. As a result, the brief of evidence was not authorised, and charges were not laid.
In 2008, S made a further, detailed statement to the police, in which she said that her original allegations were true. This revived the police investigation. Charges were laid against the applicant (but not R) and a committal hearing took place. It emerged, however, that much of the information obtained was missing or incomplete. A ‘Basha’ inquiry was convened before Judge Smallwood.
There was extensive discussion at the Basha inquiry about inconsistencies in the accounts given by S of the offending at different points in time. Besides the inconsistency comprised in her withdrawing and later reviving the allegations, there was a discrepancy between the evidence which S had given at the committal and a subsequent statement given to police in July 2011. At the committal, S had stated that R and her brother were not involved in the offending. In the statement, however, she claimed that they were involved (consistently with her statements in 1995 and 1996), and that she had lied at the committal to ‘protect’ R and her brother.
Judge Smallwood pointed out that this inconsistency on its face amounted to perjury; the explanation offered for the inconsistency did not alter this fact. His Honour indicated that, if S were to give evidence against the applicant at trial, she might need to be indemnified against a possible prosecution for perjury. He pointed out that this put the Crown in a difficult position. S had been set to give evidence at the Basha inquiry, but had not done so by the time these concerns were raised.
On 4 November 2011, before S had been called, the prosecution filed a notice of discontinuance.[14] There was no indication given by the prosecution at the inquiry that perjury charges would be laid against S in relation to her evidence at the committal.
[14]Formerly known as a nolle prosequi: see Criminal Procedure Act 2009 (Vic) s 177.
The perjury referred to by Judge Smallwood has no bearing on the matters the subject of this application. In the first place, the relevant lies told by S did not relate to the applicant’s conduct. The only relevantly perjurious statement was her claim regarding R’s involvement. Although it would obviously have damaged S’s credibility, any conviction for perjury would not have affected her allegations about the applicant. Of course, there are other inconsistencies in her out-of-court statements which do bear on the applicant’s involvement (that is, her retraction then subsequent reinstatement of her claims).
Further, even if that perjury did have some relationship to the applicant’s conduct, there is no apparent connection between the allegations made by S and the matters to which the applicant pleaded guilty, although the applicant maintains in his written material that such a connection exists:
[C1] and [C2] could not even get their story straight as they contradict each others events. But somehow I feel all this has been instigated by someone else and then it all came to light, as it was all instigated by [S], my ex-wife [sic] from my first marriage [R] …
And it was also [S] that got [C2] and also [C1] to make false allegation against our other sons, that [C2] and [C1] confessed in the Children’s Court in Melbourne that they lied about the allegations against the family instigated by [S].
As mentioned earlier, according to the applicant, when C1 and C2 commenced to live with the applicant and his other children, S left the home, apparently in protest at the new arrivals. There is nothing in the material relied on by the applicant to support his assertion that S persuaded C1 and C2 to make false allegations against the applicant and his wife. Nor is there anything to show that the allegations are connected. But, even if the applicant had been able to provide evidence of instigation or encouragement, this would have been a matter going to the credibility of C1 and C2, which the applicant could have raised if he had chosen to contest the charges.
The applicant also claimed at the November 2011 hearing that S had colluded with his daughter-in-law, B, to prevent witness N from signing a declaration or otherwise giving evidence regarding the retraction she had witnessed. He said:
The fact is this person and another person by the name of [B], my daughter in law, approached [N], demanding that she does not provide the affidavit to support what [C1] and [C2] had confessed to, conspiracy.
So the (indistinct) is that the person asked was going to ignore the request by these two people and then she got into a confrontation with these two, [S], which is mentioned in the appeal document quite extensively, and [B], my daughter in law. The fact is that she was so intimidated that she didn't want nothing to do with the matter any further, a disgusting conspiracy.
This is, again, no more than an assertion and cannot provide a basis for setting aside the conviction. The applicant’s assertions that S and others have committed the offence of conspiracy to pervert the course of justice are likewise unsupported by the materials.
Complaint to the ESD
The applicant’s complaint to the ESD relates to allegations of inappropriate behaviour by two investigating officers. Those allegations do not relate to any matters raised in this application, and so there is no need for the Court to consider those complaints any further.
Subpoena application
The applicant at one point filed an application under s 317 of the Criminal Procedure Act 2009 (Vic) seeking an order for the production of documents. Rather than providing a list of particular documents to be produced, the applicant filed submissions containing the names of many institutions and organisations (including schools, counselling services and medical clinics) which he believes have documents that will assist him in proving he is not guilty.
Under s 317, the Court may order the production of any document if it ‘considers that it is in the interests of justice to do so’. It was unclear from his application exactly which documents the applicant was seeking.
There was no basis, in my view, for ordering the production of any documents. The types of documents of which the applicant was seeking production did not bear upon the issues which arise in the current application. This Court is not conducting a trial of the evidence against the applicant. He had the opportunity to have a trial and elected not to, knowing full well what the consequences would be. He has likewise had ample opportunity, over many months, to identify every matter on which he relies in support of the present application.
Conclusion
This matter has taken considerably longer than first anticipated, principally because of the seriousness of the applicant’s claims of fabricated allegations and because he is unrepresented. I am satisfied, however, that the applicant has been given every reasonable opportunity to substantiate those claims, and has failed to do so. I wish equally to acknowledge the assistance provided to the applicant by Victoria Legal Aid in connection with this matter.
Further, I am quite satisfied that the applicant pleaded guilty of his own free will, in full knowledge of his right to go to trial. He clearly understood the nature of the charges against him and there was no coercion. He acknowledged that he was pleading guilty after being advised that the case against him was strong. The evidence was, as I have said, quite sufficient to support a conviction on all counts.
There has been no relevant change of circumstance. It appears from the applicant’s written submissions, and again from his recent correspondence to the Court that what may have triggered this application is that he received a longer sentence than he was expecting, and longer than he was advised by his legal representatives was likely. But, as the New South Wales Court of Criminal Appeal held in R v Plummer,[15] no miscarriage of justice occurs where an accused seeks to withdraw a plea of guilty on the basis that his or her legal representatives underestimated the length of sentence which the accused would receive.
[15][2000] NSWCCA 363, [25]–[26].
The application for an extension of time must be refused. The sentence appeals will be re-listed as soon as practicable.
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