MMC v The State of Western Australia
[2018] WASCA 52
•26 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MMC -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 52
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 9 AUGUST 2017
DATE OF FINAL
SUBMISSIONS : 12 DECEMBER 2017
DELIVERED : 26 APRIL 2018
FILE NO/S: CACR 186 of 2016
BETWEEN: MMC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: KEEN DCJ
File Number : IND GER 48 of 2011
Catchwords:
Criminal law - Application to extend time to appeal against conviction - Unlawful carnal knowledge of a child under the age of 13 years - Appeal notice more than five years out of time - No adequate explanation for delay - Appellant convicted on pleas of guilty - Whether appellant criminally responsible - Soundness of mind - Whether pleas of guilty compelled - Whether miscarriage of justice - No merit in proposed ground of appeal
Legislation:
Nil
Result:
Application for an extension of time dismissed
Applications for leave to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Burke v Corruption and Crime Commission [2012] WASCA 49
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
MMC v The State of Western Australia [2012] WASCA 187
Vella v The State of Western Australia [2006] WASCA 129
JUDGMENT OF THE COURT:
Although the appellant was born male and identified in that way at the time of the offending and at the sentencing, the appellant now identifies as female. In accordance with her wishes, we will refer to the appellant, where it is necessary to do so, by the feminine personal pronouns 'she' and 'her'.
On 26 August 2011, the appellant was convicted in the District Court, on her fast‑track pleas of guilty, of 16 child sex offences. Her counsel was Mr Kyle Martin.
Each of counts 1 to 5 alleged that, on a date unknown between 12 March 1987 and 1 January 1988, the appellant had unlawful carnal knowledge of her half‑sister, F, a child under the age of 13 years, contrary to s 185(1) of the Criminal Code (WA). In essence, it was alleged that on five occasions the appellant had penile/vaginal intercourse with F. The appellant was 14 when she committed these offences. F was 11.
Counts 6 ‑ 16 alleged sexual offending on various dates between 31 July 2008 and 9 April 2011 against three children of the appellant's then partner, G. The children (H, K and J) are girls. It is unnecessary to particularise the offences relating to these children, save to say that some of the offences involved penetration of the victim's vagina.
The total effective sentence imposed upon the appellant for the 16 counts was 11 years' imprisonment with eligibility for parole, backdated to commence on 9 April 2011. With respect to the offences committed against F, the appellant was sentenced to 1 year's imprisonment on each charge. His Honour ordered the sentences for counts 1, 6, 7 and 10 be served cumulatively, and that the sentences for the other counts, including counts 2 ‑ 5, be served concurrently. In the result, the appellant was required to serve 1 year, of the total effective sentence of 11 years, for the offences against F.
On 14 June 2012, the appellant applied for an extension of time to appeal and, if granted, leave to appeal against sentence on the basis that the total effective sentence infringed the first limb of the totality principle. The application for an extension of time was refused because the proposed ground of appeal did not have a reasonable prospect of success.[1]
[1] MMC v The State of Western Australia [2012] WASCA 187 [68].
On 24 November 2016, the appellant, acting on her own behalf, applied for an extension of time and, if granted, leave to appeal against conviction. The appellant does not dispute her convictions with respect to counts 6 to 16. The appeal concerns only the convictions in respect of the offences committed against F.[2] The appeal was filed approximately five years and two months out of time. This delay is gross by any standard. The appellant's application for an extension of time within which to appeal is supported by her voluminous affidavit sworn on 17 November 2016.[3] The affidavit contains over 80 annexures and takes up more 400 pages of the white appeal book. We will return to the application for an extension of time after dealing with the merits of the proposed ground of appeal.
[2] Appeal ts 13.
[3] WAB 7 ‑ 439.
The proposed ground of appeal
The appellant's proposed ground of appeal is expressed in her appellant's case in this way:
Ground 1:the learned judge erred by allowing the appellant to be charged as an adult for historic acts of sexual conduct alleged to have occurred when the appellant was 13-14 years of age, and then to sentence said appellant on those charges to a term of imprisonment.
Particulars:
a)The conviction is unsafe where the acquisition [sic] of a confession from the appellant by an agent or agents acting on behalf of the Prosecution was obtained through the use of unlawful interrogation and detention techniques.
b)Defence counsel misrepresented the appellant by compelling him [sic] to go against his [sic] conscience and plead guilty to all charges, even though the appellant had informed his [sic] legal counsel that he [sic] was not guilty of all charges.
c)The conviction is unsafe where the allegations by the complainant, [F], were fabricated with the assistance of her father, [TW] and her siblings, [T] and [B].
d)The learned judge erred by allowing the misuse of the 'Propensity Rule'.
It is obvious that the particulars do not amplify the ground of appeal. They are separate and distinct complaints and we will deal with them in that way.
The question of leave to appeal with respect to this ground, was referred to the hearing of the appeal. As explained, in her appellant's case and in the three‑part written submissions the appellant handed to the court at the hearing of the appeal, she seeks to set aside the convictions that were entered as the consequence of her pleas of guilty in respect of the offences against F on one or more of the following bases:
(1)The appellant was not criminally responsible for the acts which constituted the counts because she was under the age of 14 years at the time they were allegedly committed: see s 29 of the Criminal Code (WA).
(2)Police officers 'compelled' her to plead guilty against her will.
(3)Her lawyer, Mr Martin, 'compelled' her to enter pleas of guilty against her will.
(4)F's allegations were fabricated with the assistance of her father, TW (a prison officer) and her siblings.
(5)The judge 'erred' in admitting 'propensity evidence'.[4]
[4] Appellant's case [2], [7].
Background
At all material times, from the appellant's arrest to her sentencing, she was represented by Mr Martin or a lawyer instructed by Mr Martin. Mr Martin was a solicitor then employed by Legal Aid (WA) at its Geraldton office.
On 9 April 2011, the appellant was arrested and charged with respect to alleged sexual offending against H. The appellant was subsequently arrested and charged with sexual offending against J and K. She was remanded in custody. Initially, she was kept on remand at the Greenough Regional Prison (GRP).
After F was informed that the appellant had been charged with offences against the appellant's stepdaughters, F made allegations to the police against the appellant.[5] On 28 April 2011 and 23 May 2011, F signed witness statements setting out those allegations.[6]
[5] ts 9.
[6] Prosecution brief, pages 253 ‑ 266.
On 24 May 2011, Detective Bushby told Mr Martin that he was planning to interview the appellant at the GRP in respect of the allegations made by F. Mr Martin telephoned the appellant to inform her, amongst other things, that she was under no obligation to speak to Detective Bushby.[7] Detectives attended at the GRP. The appellant made no admissions, declining to participate in an electronically recorded interview.[8]
[7] Appeal ts 23.
[8] Statement of material facts, page 6; blue green AB 63.
On 24 May 2011, the appellant was arrested and charged with the offences relating to F. The relevant prosecution notice was filed in the Children's Court at Geraldton, setting out the offences in terms which were, in substance, the same as those later alleged in the indictment.[9]
[9] Blue green AB 4 ‑ 6.
On 2 June 2011, the appellant appeared in the Children's Court at Geraldton. She was represented by Mr Martin. The magistrate remanded her in custody to appear again in that court on 30 June 2011 for mention.[10] On 30 June 2011, the appellant was represented by counsel briefed by Mr Martin, Mr Smith. On this occasion the appellant pleaded guilty on the fast‑track system to all of the charges against her, including those relating to F. The appellant was remanded in custody for sentencing in the District Court on 22 August 2011. The magistrate ordered that pre‑sentence, psychiatric and psychological reports be prepared.[11]
[10] Blue green AB 4.
[11] Blue green AB 4.
Instead of being sentenced on 22 August 2011, the appellant was sentenced on 26 August 2011. By this time, she had been transferred from the GRP to Hakea Prison. The proceedings on 26 August 2011 were conducted at the District Court in Perth. The appellant appeared in person. Mr Martin appeared by video‑link from Geraldton.[12]
[12] ts 4 ‑ 5.
The transcript of the sentencing proceedings reveals that the appellant entered unequivocal pleas of guilty to all of the charges in the indictment, including those that pertained to F.[13] The prosecutor, after tendering the prosecution brief and the exhibits, read a statement of material facts to the sentencing judge, including as to counts 1 ‑ 5.[14] The contents of this statement were in substance no different to the statement of material facts which had been prepared and served on the appellant by the police prior to the entry of her pleas of guilty in the Children's Court.
[13] ts 2 ‑ 4.
[14] ts 5, 8 ‑ 14.
Mr Martin told his Honour that he had read the pre‑sentence, psychiatric and psychological reports and that the facts alleged by the State were 'accepted in their entirety'.[15] However, in relation to the offences against H, J and K, Mr Martin told the sentencing judge that the appellant 'adamantly denies full penetrative sex'.[16] Mr Martin said that this denial was 'not in relation to the 1987 charges',[17] that is, the charges concerning F. As to these charges, Mr Martin said '[the appellant] also admits the facts in relation to the 1987 charges as against [the appellant's] sister'.[18]
[15] ts 15.
[16] ts 15.
[17] ts 15 - 16.
[18] ts 16.
In the course of the appellant's plea in mitigation, Mr Martin urged the sentencing judge to impose a penalty on counts 1 ‑ 5 to reflect, as he put it, 'the criminality of a 14‑year‑old boy'.[19]
[19] ts 18.
It is unnecessary, in the context of this appeal, to canvass his Honour's sentencing remarks.
Evidence as to the appellant's mental state at sentence
As will be seen, the appellant claims that, at the time she appeared in the District Court for sentence she was 'borderline suicidal and utterly depressed'[20] and that this had some bearing upon the pleas of guilty she entered. Accordingly, it is necessary to have regard to relevant portions of the psychiatric and psychological reports that were before the sentencing judge.
[20] WAB 36, annexure 2.
On 19 July 2011, the appellant was interviewed by Dr Mark Hall, a consultant psychiatrist. Dr Hall's report was dated 15 August 2011. In it, he noted that the appellant denied 'any current suicidal thoughts, plans or intent'.[21] He found that the appellant did not suffer from any serious or treatable mental illness. He wrote that the appellant satisfied diagnostic criteria for paedophilia.[22]
[21] Dr Hall's report, pages 7 and 8.
[22] Dr Hall's report, page 10.
On 22 July 2011, the appellant was interviewed by Mr David Summerton, a psychologist. Mr Summerton administered the Personality Assessment Inventory. In his report dated 14 August 2011, Mr Summerton wrote that the appellant's responses included an endorsement of items that reflected extremely bizarre or unlikely symptoms. Consequently, Mr Summerton said that the test results were 'interpreted with caution'.[23] Mr Summerton observed symptoms associated with post‑traumatic stress disorder and that the appellant copes with anxiety by engaging in a range of maladaptive behaviours.[24] Mr Summerton noted the presence of '[a] current indication of depression and marked anxiety'.[25]
[23] Mr Summerton's report, page 9.
[24] Mr Summerton's report, page 9.
[25] Mr Summerton's report, page 11.
Additional evidence sought to be adduced in this appeal
There was no evidence or material before the District Court capable of supporting the allegations of fact contained in particulars (a) ‑ (c) of the proposed ground of appeal. In support of these particulars, the appellant, before and after the hearing of the appeal, sought to adduce the following additional evidence in support of these particulars.
Affidavit of 17 November 2016
The written submissions in support of particulars (a) ‑ (c) rely upon the material contained in the affidavit sworn by the appellant on 17 November 2016 in support of her application for an extension of time. Although the appellant did not make a formal application to adduce this material as additional evidence in this appeal, it is clear enough that she wishes this court to have regard to it as if it was the subject of an application to adduce additional evidence. We will consider it in this light. At the hearing of the appeal, the respondent's counsel did not seek to cross‑examine the appellant in respect of the affidavit, but stated that the respondent should not be understood as accepting the truth of the appellant's statements.[26]
[26] Appeal ts 3.
Particular (a) speaks of 'a confession from the appellant' being acquired by 'unlawful interrogation and detention techniques'. As the appellant was not alleged by the respondent to have made any statement against interest in respect of F, the appellant's use of the word 'confession' can only be understood as a reference to her pleas of guilty. This understanding is reinforced by the appellant's submissions.
The appellant alleges that, prior to Detective Bushby's attempt to interview her with respect to allegations made by F, police officers from the child abuse squad had interviewed her at GRP about the allegations made by H, J and K. The appellant alleges that during this interview, she was, in effect, intimidated and mistreated by those officers. She says that they interviewed her for more than four hours and, during that time, she was not given water and was 'emotionally bullied'.[27] She claims that the police suggested a version of events in respect of H, J and K which she then repeated 'almost word for word'.[28]
[27] WAB 376, annexure 74.
[28] WAB 376, annexure 74.
The appellant says that about 'ten days later',[29] the police returned to the GRP to interview her about the allegations made by F. She says that she told the police that the allegations were 'not true'[30] and, in accordance with the advice she had been given by Mr Martin, she declined to answer any questions in the absence of her lawyer. The appellant claims that she was told that it did not matter what she said because she was going to be charged anyway. Further, the appellant claims that she was told that if she tried to plead not guilty to the charges relating to F, fresh charges would be laid and that she would never get out of gaol.[31] As we apprehend it, she claims that she pleaded guilty to the offences against F because of this 'unlawful' conduct of the police.
[29] WAB 377, annexure 74.
[30] WAB 377, annexure 74.
[31] WAB 377, annexure 74.
Particular (b) alleges that Mr Martin compelled the appellant to plead guilty to all charges, including the charges concerning F, even though she had told him that she was not guilty. The manner in which Mr Martin allegedly compelled the appellant to enter pleas of guilty is described by her in annexure 2 in the affidavit of 17 November 2016, as follows:[32]
I barely got any communication from Kyle Martin over the phone and only saw him at court video links. Sometimes he did not even turn up to those. When I had been ordered by the court to attend both a psychiatric and psychological examination I was borderline suicidal and utterly depressed. I was upset about how I was treated by the detectives and that no one would believe me so I deliberately gave false answers on my examinations and portrayed myself as a psychotic lunatic.
The day before I was going to be taken to court to be sentenced [in the District Court] I was contacted by Kyle Martin to tell me the prosecution was going to push for a 20-year sentence. I was totally devastated. Kyle Martin had been telling me all along that I was looking at 3 years at the most. Especially as he had advised me to plead guilty to all charges even though I told him of my innocence and what the detectives had done. He said the fast‑track plea would also show the court my remorse. Kyle Martin told me if I did not request a trial and put the kids through a traumatic process that it would be in my favour. So I parroted his advised position.
[32] WAB 36 - 37, annexure 2.
Particular (c) claims that the allegations by F were fabricated with the assistance of her father, TW, and her siblings. In support of this particular, the appellant relied largely on her own denials of offending against F and two affidavits sworn by her mother on 26 May 2016, which appear as annexures 69 and 70 in the appellant's affidavit sworn 17 November 2016.[33] Very little of the material in those affidavits is admissible. Some of it takes issue with aspects of the contents of F's police statement relating to background matters. None of it falsifies F's allegations of sexual misconduct on the appellant's part.
[33] WAB 352 - 365.
In one of the annexures to the affidavit sworn 17 November 2016, the appellant named another person as having sexually abused F. In a letter dated 1 January 2016 to the Corruption and Crime Commission, she also explained why she came to the view that she had been falsely accused of having abused F.[34] It is unnecessary to repeat in detail what the appellant wrote, as all of this material is inadmissible and, even if received as evidence, either speculative or irrelevant. It is incapable of demonstrating that F, TW and her siblings have together fabricated the allegations.
Application by the respondent for leave to adduce evidence and to issue a witness summons filed 21 July 2017
[34] WAB 306, annexure 57.
In answer to the allegations made by the appellant that Mr Martin compelled her to enter pleas of guilty 'against her conscience' in respect of the offences concerning F, the respondent filed an application dated 21 July 2017 to adduce evidence from Mr Martin at the hearing of the appeal, along with an application for a subpoena to compel him to testify. It appears that Mr Martin had been reluctant to provide the respondent with details of his communications with the appellant because he believed them to be protected by legal professional privilege. The respondent was granted leave to issue and serve a subpoena on Mr Martin.
Mr Martin's evidence at the hearing of the appeal
At the hearing of the appeal on 9 August 2017, the respondent called Mr Martin to give evidence. Mr Martin was cross‑examined by the appellant. Mr Martin maintained the claim of privilege on behalf of the appellant. This court ruled that the appellant had, by the allegations she made against Mr Martin, impliedly waived legal professional privilege.[35]
[35] Appeal ts 8.
Mr Martin testified that on 21 April 2011 and 3 May 2011, he personally visited the appellant at the GRP.[36] On these occasions, he took instructions from the appellant with respect to the charges in relation to H, J and K. He could not have discussed the charges in relation to F because they were not laid until after those visits.
[36] Appeal ts 17.
Mr Martin has no independent recollection of his conversations with the appellant in relation to the charges with respect to F. Based on his file notes, Mr Martin said that he did not speak to the appellant face to face about the charges in relation to F.[37] On 29 June 2011 (the day before the appellant entered pleas of guilty in the Children's Court at Geraldton), Mr Martin said that he spoke to the appellant by telephone. Mr Martin said that the appellant provided him with instructions that she would plead guilty to all of the charges brought against her, including with respect to F.[38] Mr Martin had prepared a document which he read to the appellant over the telephone. The document which he retained on his file read:[39]
Five counts of unlawful carnal knowledge of a girl under 13 years in relation to [F]. I confirm that I have been advised as to the elements of this [sic] offences and of the maximum penalties provided by law relating to them. I have been advised that I am under no obligation to plead guilty to any of the above matters and that I may plead not guilty and have a trial where the prosecution will have to produce all of its evidence on each charge and I will be able to present my own evidence if I so wish. I also confirm that I have been advised that a plea of guilty to a charge is a complete admission of each element of the offence charged and such a plea cannot be changed once a conviction is recorded. I have understood this advice and confirm that I intend to plead guilty.
[37] Appeal ts 17 ‑ 18.
[38] Appeal ts 12, 18, 27 ‑ 28.
[39] Appeal ts 12.
Mr Martin said the appellant acknowledged the accuracy of what was read to him.
Beneath the document, Mr Martin wrote the following and then signed it:[40]
Read to client over the phone to Hakea on 29 June 2011 at 2.45 pm. Client accepts it all and maintains [the client's] instructions to plead guilty.
[40] Appeal ts 12.
Mr Martin testified that after the appellant entered her pleas of guilty in the Children's Court at Geraldton, but before he appeared in the District Court, he again spoke to the appellant by telephone. In this conversation, Mr Martin said that he discussed with the appellant the various reports that the court had obtained and how he intended to conduct his plea in mitigation. Mr Martin said that his file notes showed that the appellant was satisfied with Mr Martin's approach.[41]
[41] Appeal ts 14.
Mr Martin said that there was a note on his file to the effect that he advised the appellant that she should expect to receive a 'lengthy term of imprisonment'.[42]
[42] Appeal ts 14.
Mr Martin testified that there was no file note to the effect that the appellant did not want to plead guilty in respect of the offences relating to F. He said that if the appellant had displayed reticence as to her pleas, he would have noted it.[43]
[43] Appeal ts 20.
Mr Martin said that when he advised the sentencing judge that the appellant admitted the facts in relation to the charges in respect of F, he would not have made that statement without her instructions.[44]
[44] Appeal ts 19.
Mr Martin denied that he compelled the appellant to plead guilty to the charges in relation to F and that, if the instructions the appellant had given to him had been otherwise, 'then my file would look a lot different'.[45]
[45] Appeal ts 20.
In cross‑examination, Mr Martin said that he was admitted to practice in 2009 and was, in 2011, practising under the guidance of the senior solicitor in charge of the Geraldton office of Legal Aid WA. He said that if the appellant had given instructions that she wished to plead not guilty, the matter would have been briefed to another solicitor.[46]
[46] Appeal ts 22.
The appellant's applications filed after the hearing on 9 August 2017
This court reserved judgment at the conclusion of the hearing on 9 August 2017. On 8 September 2017, the appellant filed an application for leave to adduce additional evidence. This application was supported by an affidavit sworn by the appellant on 7 September 2017 in which she claimed that there was no record on TOMS (Total Offender Management System) of Mr Martin visiting her at the GRP on 21 April and 3 May 2011. Further, she denied that Mr Martin spoke to her by telephone with respect to the allegations made by F. The appellant deposed to unsuccessful attempts she had made to obtain a 'clean audio copy' of recordings made by the prison authorities of conversations between her and Mr Martin.
On 13 October 2017, the appellant applied to issue a subpoena requiring the Department of Justice to produce the following documents:
A list of the telephone calls both to and from Mr Kyle Thomas Martin - Legal Counsel and the Applicant between the dates of 8th April 2011 and 8th October 2011 for Greenough Regional Prison. In original form so far as is practicable.
A list of the telephone calls both to and from Mr Kyle Thomas Martin - Legal Counsel and the Applicant between the dates of 8th April 2011 and 8th October 2011 for Hakea Prison. In original form so far as is practicable.
The audio files of calls both to and from Mr Kyle Thomas Martin - Legal Counsel and the Applicant between the dates of 8th April 2011 and 8th October 2011 for Greenough Regional Prison. In original form so far as is practicable.
The audio files of calls both to and from Mr Kyle Thomas Martin - Legal Counsel and the Applicant between the dates of 8th April 2011 and 8th October 2011 for Hakea Prison. In original form so far as is practicable.
Any and all documentation from both manual and electronic records pertaining to in‑person visits by Mr Kyle Thomas Martin (if any) in original form so far as is practicable.
On 17 October 2017, in response to the applications of 8 September 2017 and 13 October 2017, the respondent filed a number of documents, including:
(a)the affidavit of Sandra Sue Patten sworn 16 October 2017;
(b)the affidavit of Stephen Peter Barron sworn 16 October 2017;
(c)the affidavit of Kyle Thomas Martin sworn 17 October 2017; and
(d)written submissions signed by Mr Scholz dated 17 October 2017.
The effect of this material is that it is apparent that Mr Martin made an error when he testified on 9 August 2017 as to the date of his first visit with the appellant at the GRP. It will be recalled that he testified that he visited the appellant on 21 April 2011. In fact, the visit took place on 19 April 2011. The TOMS for the GRP with respect to prisoner visits was not necessarily accurate in April and May 2011. Such visits were not always recorded on TOMS at that time. However, a record was kept on a daily register held at the GRP. Copies of the relevant pages of the daily register at GRP annexed to the affidavits of Mr Barron and Mr Martin show that Mr Martin was recorded as having visited the GRP on 19 April 2011 and 3 May 2011. We are satisfied that, contrary to the appellant's submissions, Mr Martin's error as to the date of his April visit to GRP was inadvertent and has no bearing upon the accuracy or truthfulness of his testimony.
Ultimately, this court dismissed the application for the issue of the subpoena. This is because correspondence received by the appellant from a legal officer of the Department of Justice, dated 15 September 2017, stated that telephone calls between prisoners and their legal representatives are not recorded. The contents of this letter are not disputed. Thus, to issue a subpoena seeking the lists of telephone calls and the audio files of conversations between the appellant and Mr Martin would be pointless. As to the last category of documents sought by the appellant, the only relevant record of 'in person visits' by Mr Martin was produced in the material filed by the respondent on 17 October 2017.
Submissions made by the appellant in support of the ground of appeal
Rather than make oral submissions to this court at the hearing of the appeal on 9 August 2017, the appellant was given leave to hand to the court three documents which the appellant asked the court to consider as, in effect, her oral submissions. The respondent made no objection to this course and the court allowed the appellant to hand up the documents. They have been carefully read and considered in conjunction with all of the other written material provided to the court by the appellant.
The appellant reiterated that Mr Martin 'compelled' her to plead guilty even after she insisted upon her innocence with regard to F.[47] The appellant said that Mr Martin told her that if she pleaded guilty she would, in effect, get a lesser sentence because the pleas would be indicative of remorse and would spare the complainants the trauma of giving evidence. The appellant said that she felt that she had no choice but to accept Mr Martin's advice as 'genuine' and as being in her best interests.[48]
[47] Page 7 of document 1 presented on 9 August 2017.
[48] Pages 7 ‑ 8 of document 1 presented on 9 August 2017; see also page 19 of document 3 presented on 9 August 2017.
The appellant also explained why the detectives had 'compelled' her to plead guilty to offences concerning F. She said that the first interview relating to the allegations made by H, J and K instilled in her a sense that telling the truth made no difference.[49]
[49] Page 9 of document 3 presented on 9 August 2017.
At a number of points in the documents the appellant reiterated her innocence of any wrongdoing against F. She repeated the theory that someone else had been the perpetrator. She also repeated allegations against TW and F's siblings which do not require elaboration in these reasons. She emphasised her frail mental state at the time she entered her pleas of guilty.
Section 29 of the Criminal Code
Section 29 of the Criminal Code concerns the criminal responsibility of offenders under the age of 14 years. The section is as follows:
29. Immature age
A person under the age of 10 years is not criminally responsible for any act or omission.
A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
Setting aside a conviction upon a plea of guilty - legal principles
The following legal principles with respect to the setting aside of a conviction entered upon a plea of guilty are well established.
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: Meissner v The Queen.[50]
[50] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141 (per Brennan, Toohey & McHugh JJ).
To be valid, the plea must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in Meissner, 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 or she would if convicted after a plea of not guilty.[51] The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred.[52]
[51] Meissner (157).
[52] Meissner (157).
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. While the categories of miscarriage of justice are not closed, the cases reveal that there are three well‑recognised circumstances in which courts are prepared to set aside pleas of guilty, being:
(1)where the appellant did not understand the nature of the charge or intend to admit guilt;
(2)where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like.[53]
[53] Vella v The State of Western Australia [2006] WASCA 129 [26].
Merits of the proposed ground of appeal
In our opinion, there is no merit in the proposed ground of appeal.
Was the appellant criminally responsible?
The appellant's argument that she was not criminally responsible for the alleged offences against F cannot be accepted.
The insurmountable difficulty for the appellant is that s 29 of the Criminal Code has no application on the facts of this case. The offences to which the appellant pleaded guilty alleged that the appellant committed the offences against F on a date unknown between 12 March 1987 and 1 January 1988. The appellant was born on 14 February 1973.[54] Thus, between 12 March 1987 and 1 January 1988, the appellant was 14 years of age.
[54] Blue green AB 1 - 3.
We note that in further submissions, filed 24 October 2017, the appellant said she was 'barely 14'.[55] This submission impliedly acknowledges that the appellant was, in fact 14, at the time of her offending.
[55] Submissions 24 October 2017, par 27.
She also stated that she had been emotionally 'retarded' as a result of abuse she experienced at that age.[56] This submission seems to assume that s 29 of the Criminal Code refers to an 'emotional' age as opposed to a chronological age. This assumption finds no support in the statutory language of the section or in any authority. The ages referred to in s 29 of the Criminal Code are chronological and do not take into account emotional factors.
[56] Submissions 24 October 2017, par 27.
The allegations contained in the particulars to the ground of appeal
There is no merit to the particulars to the ground of appeal.
Particulars (a) and (b)
We begin by observing that the appellant entered unequivocal pleas of guilty in respect of the charges against all of the victims, including F. She did not allege otherwise.
Next, while the appellant alleges that she was not of sound mind at the time she entered the pleas of guilty, there is no evidence before this court capable of supporting that conclusion. The expert reports before the sentencing judge, referred to at [22] ‑ [23] of these reasons, do not describe any symptom or give any diagnosis indicating unsoundness of mind at the time she entered her pleas.
This takes us to the allegations that her lawyer, Mr Martin, and the investigating police officers compelled her to enter pleas of guilty against her will. The precise allegations are set out in her affidavit of 17 November 2016 and have already been described in these reasons at [25] ‑ [29].
We noted earlier that the respondent chose not to cross‑examine the appellant on her 17 November 2016 affidavits, albeit without accepting the truth of their contents. Ordinarily, but not always, it may be assumed that where a witness is not cross‑examined on a particular issue, his or her evidence on that issue is not in contest.[57] However, for the following reasons, the ordinary position does not apply to the present case and the appellant's allegations of compulsion cannot be accepted.
[57] Burke v Corruption and Crime Commission [2012] WASCA 49 [184].
First, in the case of Mr Martin, even if the appellant's evidence is accepted at face value, it cannot support a conclusion that Mr Martin compelled her to enter her pleas of guilty against her will. The appellant's references to being compelled by Mr Martin are put in very general and conclusionary terms. The appellant does not describe any conduct on the part of Mr Martin which could, on any reasonable view, amount to compulsion, intimidation or the like. At its highest, the effect of the appellant's evidence is that Mr Martin advised her to plead guilty. That falls well short of compelling the appellant to do so.
The appellant said she told Mr Martin she was not guilty of the offences against F. However, as the authorities reveal, a person may plead guilty upon grounds which extend beyond that person's belief in their own guilt. On the appellant's evidence, Mr Martin advised her to enter pleas of guilty, essentially to secure a more advantageous position for the appellant in sentencing, and the appellant acted on the advice. Pleas of guilty entered in such circumstances do not amount to a miscarriage of justice.
The fact, assuming it to be accepted, that the appellant evidently accepted Mr Martin's advice and then, as she colourfully put it, 'parroted'[58] that advice, is not conduct capable of amounting to or causing a miscarriage of justice.
[58] WAB 37, annexure 2.
Second, Mr Martin's contemporaneous file notes, including the instructions given to him by the appellant on 29 June 2011, contradict the appellant's statements that she told Mr Martin that she was innocent of any wrongdoing against F. There was no challenge to Mr Martin's evidence that, had he been told this, he would have recorded it. Moreover, that evidence accords with common experience and with the objective probabilities. In light of the contemporaneous notes and Mr Martin's unchallenged evidence as to what he would have done had the appellant instructed him that she was innocent of the charges against F, we do not accept the appellant's evidence that she told Mr Martin she was not guilty.
Further, Mr Martin's submission in the course of his plea in mitigation, in the presence of the appellant, to the effect that the appellant admitted full penetration of F, but not of H, J and K, would be inexplicable if, as the appellant claims, she had instructed him that she did not commit any offence against F. Moreover, the appellant did not challenge this submission, when it was made or shortly afterwards.
Third, it cannot be overlooked that the appellant took more than five years to bring the allegations of compulsion against Mr Martin and the police. The appellant seeks to attribute this delay to matters personal to her, including that she feared making the allegations. These explanations are difficult to accept, given that in 2012 the appellant sought leave to appeal against her sentence and experienced counsel appeared on her behalf at the hearing. This is a case where, to our minds, the very long delay in making the allegations seriously undermines their credibility.
Fourth, relevantly to the allegations against the police officers, the appellant's account of what occurred when the police officers came to interview her about the allegations made by H, J and K is, to our minds, implausible. Her claim that the police suggested a version of events in respect of H, J and K, which she then repeated 'almost word for word', cannot be accepted, given:
(a)she subsequently pleaded guilty to the offences with respect to H, J and K;
(b)she has not challenged those convictions;
(c)apart from the extent of the sexual penetration in the offences, she has not challenged the circumstances surrounding the commission of those offences; and
(d)before this court, she has expressly reaffirmed her guilt for the offences and her remorse.
Fifth, even if Detective Bushby threatened the appellant with further charges and that she would never get out of gaol if she tried to plead not guilty, those threats do not, on the appellant's evidence, appear to be a reason why she entered guilty pleas to counts 1 ‑ 5 relating to F. Her police interview concerned the offences against H, K and J. The appellant has never denied her guilt of those offences. Based on the appellant's evidence and submissions, she entered pleas of guilty to counts 1 ‑ 5 on the basis of advice given to her by counsel and with the aim of obtaining a more favourable sentence.
Sixth, for the reasons in [71], we accept Mr Martin's evidence that, if the appellant had told him that she was not guilty of the offences in relation to F, then he would have recorded that fact and that the matter would have proceeded differently.
Seventh, some of the appellant's submissions complain of incompetence on the part of Mr Martin, as distinct from a complaint that he compelled the appellant to plead guilty.[59] Such submissions go beyond the grounds of appeal. In any event, there is nothing beyond mere assertion to suggest, much less to demonstrate, that Mr Martin's conduct of the appellant's defence caused or contributed to a miscarriage of justice.
[59] See, for example, pages 4 ‑ 5, 7 of document 1 presented on 9 August 2017; pages 13 ‑ 14, 19 of document 3 presented on 9 August 2017; appellant's submissions 24 October 2017, pars 35, 37, 149.
For the above reasons, the appellant has failed to demonstrate that she has suffered a miscarriage of justice because her pleas of guilty had been obtained by compulsion, coercion, intimidation or improper conduct on the part of her lawyer, Mr Martin, or the investigating police officers, or both. Particulars (a) and (b) of the proposed ground of appeal have not been made out.
Particular (c)
As for particular (c) of the proposed ground of appeal, the appellant's assertion that F's allegations were fabricated with the assistance of TW and her siblings is fanciful and without any proper factual foundation.
As we have indicated, there was nothing in the affidavits of the appellant's mother upon which a conclusion could be reached that F had fabricated the allegations against the appellant. Nor is there any other admissible evidence to support such a conclusion. Particular (c) has not been made out.
Particular (d)
In particular (d), the appellant complains about the admission of propensity evidence. No question of the admission of propensity evidence arose, as the appellant pleaded guilty with respect to the offences relating to F. Particular (d) has no merit.
Other arguments
The appellant asserted that she entered pleas of guilty to the offences relating to F, when she did not commit those offences, because of prescribed medication, the interview techniques employed by the police, and her submissiveness caused by years of childhood abuse. These arguments are merely assertive. They are not supported by evidence and cannot be accepted.
The appellant also submitted that her case was, in substance, analogous to the recent case of Gibson v The State of Western Australia.[60] It is sufficient to say that the appellant's case is not analogous to that of the appellant in Gibson. Apart from anything else, in Gibson, the evidence established that:[61]
(1)the appellant suffered from significant and pervasive cognitive impairments;
(2)the appellant was unable to read written English and could not adequately understand or communicate in oral English;
(3)some of the crucial meetings had occurred without an interpreter;
(4)there were doubts as to the adequacy of the interpreting on the occasions when an interpreter was present;
(5)the appellant had a strong tendency to gratuitous concurrence.
None of those matters are established by evidence in this case. The appellant's reliance on Gibson is misplaced and inapt.
[60] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199.
[61] Gibson [160] ‑ [200].
Another matter
In the course of preparing these reasons, it was noted that in Mr Summerton's report, after dealing with the allegations made by H, J and K, Mr Summerton wrote:[62]
[The appellant] claimed that he had subsequently engaged his younger sister in sexual intercourse on 2 ‑ 3 occasions when he was 12 ‑ 13 years old. He reported that he had forgotten about such activity until charges were laid during his current spell in prison. He reported that he had engaged in sexual activity with his sister because he had questioned his sexuality at the time and wanted to know if he preferred sex with girls or boys [sic].
[62] Mr Summerton's report, page 8.
As we have said, the appellant now denies that she committed any sexual offence in respect of her sister, F. If the appellant had admitted to Mr Summerton that she engaged in sexual intercourse with her sister, that potentially undermined any allegation that, in being convicted of the offences against F, she had suffered a miscarriage of justice.
The court, of its own motion, invited the appellant to attend the court to read Mr Summerton's report (which she did) and sought the submissions of the parties as to the effect of this part of the report (which were given by both the appellant and the State). It is unnecessary to recount those submissions, given that the State said it would not argue that the admission apparently made to Mr Summerton was an admission to the same wrongdoing as constituted the offences against F.
In light of this concession, it would be inappropriate to have regard to the statement allegedly made by the appellant to Mr Summerton in assessing whether the appellant has suffered a miscarriage of justice as she alleges. We have had no regard to it.
Conclusion
Upon the material before this court, including the proposed additional evidence, there is no credible evidence capable of demonstrating that the appellant did not understand the nature of the charges laid by the State or that she did not intend to plead guilty. The appellant entered unambiguous pleas of guilty. There is no credible evidence that the pleas of guilty were obtained by any improper inducement, fraud, intimidation or the like. There is no credible evidence that the appellant pleaded guilty other than in the exercise of her free choice to do so. There is no other basis upon which it has been demonstrated that the pleas of guilty were entered in circumstances which gave rise to a miscarriage of justice. The appellant's claim that her pleas of guilty occasioned a miscarriage of justice has no reasonable prospects of success. Leave to appeal should be refused.
Application for an extension of time
We now return to the application for an extension of time. In her submissions in support of the application, the appellant asserts that the main reason for the delay in bringing the appeal against conviction was 'fear'.[63]
[63] Page 2 of document 3 presented 9 August 2017.
It is unnecessary to canvass in detail the reasons given by the appellant for the gross delay in commencing this appeal. In broad terms, the appellant alleges that, as a result of the conduct of the investigating police officers and Mr Martin, as well as the difficulties she encountered in attempting to obtain legal representation for an appeal against conviction and a number of personal issues, she was not in a psychological state to commence this appeal until late in 2016. While we accept that the appellant has encountered psychological stress during her imprisonment, none of the material submitted to the court adequately explains the gross delay in bringing this appeal. The inadequacy of the explanation and the absence of any merit in the proposed ground of appeal justifies this court refusing an extension of time. Indeed, the absence of merit in itself requires the refusal of an extension of time. Further, the effluxion of time has caused prejudice to the respondent because, despite his notes, Mr Martin no longer has an independent recollection of the relevant events surrounding the entry of the pleas.
Accordingly, the application for an extension of time must be dismissed, as must the appeal. For completeness, we would also dismiss all of the appellant's applications to adduce additional evidence in the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES MURPHY & MAZZA24 APRIL 2018
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