Grey v The Queen
[2021] ACTCA 6
•17 February 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
| Case Title: | Grey v The Queen | ||||||||||||||||||||||
| Citation: | [2021] ACTCA 6 | ||||||||||||||||||||||
| Hearing Date: | 17 February 2021 | ||||||||||||||||||||||
| Decision Date: | 17 February 2021 | ||||||||||||||||||||||
| Before: | Burns J | ||||||||||||||||||||||
| Decision: | See [16] | ||||||||||||||||||||||
| Catchwords: | APPEAL – application to adduce fresh evidence – application for extension of time to institute appeal – | ||||||||||||||||||||||
| Legislation Cited: | Crimes Act 1900 (ACT) ss 54(1), 60(1) Criminal Code 1995 (Cth) s 271.7 | ||||||||||||||||||||||
| Parties: | Bradley Lester Grey (Appellant) The Queen (Respondent) | ||||||||||||||||||||||
| Representation: | Counsel | ||||||||||||||||||||||
| Self-represented (Appellant) D Barrow (Respondent) | |||||||||||||||||||||||
| K McCann (Respondent) | |||||||||||||||||||||||
| Solicitors | |||||||||||||||||||||||
| Self-represented (Appellant) | |||||||||||||||||||||||
| Commonwealth Director of Public Prosecutions (Respondent) ACT Director of Public Prosecutions (Respondent) | |||||||||||||||||||||||
File Numbers: | ACTCA 52 of 2019 ACTCA 12 of 2020 | ||||||||||||||||||||||
| Decisions under appeal: |
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SCC 335 of 2019
BURNS J:
1. I have before me an application dated 26 October 2020 lodged by the appellant, Bradley Lester Grey, seeking orders permitting him to lead fresh evidence on an upcoming appeal in this Court and for permission to appeal his conviction on a Commonwealth charge to which he entered a plea of guilty before the primary judge. It is necessary to provide some brief background to the application.
2. On 4 November 2019, a jury found the appellant guilty of 14 counts of engaging in sexual intercourse without consent and 6 counts of committing an act of indecency without consent. The offence of engaging in sexual intercourse without consent is contrary to s 54(1) of the Crimes Act 1900 (ACT) (the Crimes Act) and carries a maximum penalty of 12 years' imprisonment. The offence of committing an act of indecency without consent is contrary to s 60(1) of the Crimes Act and carries a maximum penalty of 7 years' imprisonment. I will refer to these as the Territory offences.
3. In addition, on 6 February 2020, the appellant entered a plea of guilty before the primary judge to a charge contrary to s 271.7 of the Criminal Code 1995 (Cth) alleging that between about 30 June 2013 and 25 August 2013 at various places in Australia including the Australian Capital Territory he organised or facilitated the domestic transportation of a person under the age of 18 years intending that she be used to provide sexual services during or following transportation. This Commonwealth offence carries a maximum penalty of 25 years' imprisonment.
4. On 27 February 2020, the appellant was sentenced to an aggregate sentence of 11 years and 5 months' imprisonment with a non-parole period of six years and three months. The appellant was represented by counsel and a solicitor in the proceedings before the primary judge. On 29 November 2019, the appellant lodged a Notice of Appeal against the verdicts of guilty returned by the jury on seven counts of engaging in sexual intercourse without consent. The sole ground of appeal is that the verdicts are unsafe and unsatisfactory. The Notice of Appeal was filed by the Legal Aid office on behalf of the appellant.
5. On 5 March 2020, the appellant filed a further Notice of Appeal appealing from the sentences imposed by the primary judge for the Territory offences and the Commonwealth offence. The sole ground of appeal is that the sentences imposed are manifestly excessive in the circumstances. The Notice of Appeal against sentence was filed by the appellant personally and it appears that he is not legally represented with regard to that appeal.
6. By an application dated 9 November 2020, the appellant applies to allow fresh evidence to be admitted on his appeal and to appeal the conviction on the Commonwealth charge. In each case the appellant asserts that fresh evidence has been identified. The appellant affirmed affidavits on 26 October 2020 and 8 February 2021 in support of his applications. I take the application with regard to the Commonwealth charge to be an application for an extension of time to institute an appeal against that charge. With regard to the Commonwealth charge the appellant must seek leave to appeal outside the time prescribed for the lodging of an appeal. In addition, he faces the hurdle that he is attempting to appeal from a conviction based upon a plea of guilty.
Consideration
7. The principles relevant to the application for an extension of time to appeal are not in dispute. Applications for an extension of time are not to be granted unless it is proper to do so. The legislated time limits are not to be ignored. The applicant must show an acceptable explanation for delay and it must be fair and equitable in the circumstances to extend time. Any prejudice to the respondent in defending the proceeding that is caused by the delay is a material factor militating against the grant of an extension, although the mere absence of prejudice is not enough to justify the grant of an extension. The merits of the substantial application are to be taken into account in considering whether extension of time should be granted.
8. In determining the merits of the substantial application to appeal against the conviction in the Commonwealth matter, based upon the appellant's plea of guilty to that charge, I must take into account the principles relevant to the entertaining of appeals against conviction in such circumstances.
9. The question which the court must examine is always whether the material before it establishes that a miscarriage of justice has occurred. Frequently, that will require an appellant to demonstrate that they did not appreciate the nature of the charge or did not intend to admit that they were guilty of the charge before they entered their plea of guilty, or that upon the admitted facts they could not, in law, have been convicted of the offence charged.
10. Other basis for determining that a miscarriage of justice has occurred may exist. For example, an appellant may show that his plea was induced by intimidation or by any improper inducement or by fraud. The entry of a plea of guilty constitutes an admission to all of the elements of the offence and a conviction based upon such a plea will not lightly be set aside.
11. I will now return to the appellant's affidavits. Annexed to the affidavit affirmed on 26 October 2020 is a 20-page typed document apparently prepared by the appellant and intended to support his applications. I note that a document of similar length was annexed to the affidavit affirmed on 8 February 2021. Insofar as the notes which are annexed to these affidavits touch upon matters relevant to the Commonwealth charge, the appellant complains that he should have been charged with a lesser offence, which he describes as a licensing offence carrying a much lesser penalty. He bases this assertion on things which he says he was told by a former lawyer and by the Chairman of a Legal Aid Review Committee. I will, for present purposes, accept that the statements were made to the appellant as he said.
12. As I indicated in an exchange with the appellant during the hearing of the present application, it is for the Director of Public Prosecutions to decide the charge to be laid against him. The appellant's legal representatives could make representations to the Director of Public Prosecutions about the appropriate charge, but it is, in my view, inconceivable in the circumstances of this case that the Commonwealth Director of Public Prosecutions would have agreed to withdraw its charge on the basis that the appellant pleaded guilty to some form of licensing offence if, indeed, such an offence could be identified.
13. One of the difficulties faced by the appellant in the proceeding before me today is that he is unable to identify what charge he says he should have been charged with rather than the charge which was placed before the primary judge. The elements of the Commonwealth offence bear no resemblance to anything that could be described as a licensing offence.
14. I can discern nothing from the material in the annexures to the affidavits which suggests that the appellant did not appreciate the nature of the Commonwealth charge or did not intend to enter a plea of guilty to the charge before, in fact, he entered his plea of guilty. I can see no basis for suggesting that there is any doubt about the guilt of the appellant of that offence. In my opinion, the appellant has no real prospect of success on any appeal against his conviction for the Commonwealth offence.
15. With regard to the application to adduce further evidence on his sentence appeal, I propose adopting the submission made by the ACT Director of Public Prosecutions that the question be held over to be determined before the Full Bench of the Court of Appeal on the hearing of the appeal itself.
16. The order that I make at the present time is that Order 2 sought on the application dated 26 October 2020, being the appeal of conviction on the Commonwealth charge, is refused and the hearing of the application with regard to Order 1, seeking to lead fresh evidence on the upcoming appeal, is held over to the hearing of the appeal.
I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.
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