Mongan v The King
[2024] VSCA 126
•7 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0034 |
| DANIEL MONGAN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH, KENNEDY and TAYLOR JJA |
| WHERE HELD: | Shepparton |
| DATE OF HEARING: | 6 June 2024 |
| DATE OF JUDGMENT: | 7 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 126 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1528 (Judge Smallwood) |
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CRIMINAL LAW – Appeal – Application for extension of time to make application for leave to appeal against conviction – Applicant entered plea of guilty to four offences in which estranged wife was the victim – Applicant tendered written apology for his conduct on his plea – Previous application for leave to appeal against sentence – Whether substantial miscarriage of justice because of non-disclosure; new evidence; plea entered for pragmatic reasons; plea entered under duress; or a combination of those factors – No arguable grounds advanced – Application for extension of time refused.
Meissner v The Queen (1995) 184 CLR 132; Gurrappaji v The Queen [2018] VSCA 187, followed. Weston (a pseudonym) v The Queen (2015) 48 VR 413; R v BDC [2018] QCA 132; Jones v The Queen [2018] VSCA 11, referred to.
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| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Ms E Ruddle KC | ||
Solicitors | |||
| Applicant: | Unrepresented | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
KENNEDY JA
TAYLOR JA:
Introduction
On 18 September 2019 the applicant pleaded guilty in the County Court to four charges relating to his conduct on 24 July 2018 towards his estranged wife. These were false imprisonment, common assault, aggravated burglary and making a threat to kill. The following day the applicant was sentenced to a total effective sentence of four years and six months’ imprisonment with a non-parole period of three years.
On 19 March 2021 this Court dismissed the applicant’s appeal against sentence.[1]
[1][2021] VSCA 67 (Priest and Niall JJA).
On 15 November 2021 the applicant was released on parole.
On 28 February 2024 – about 4 years and 4 months’ out of time[2] – the applicant sought to file a Notice of Application for Leave to Appeal Against Conviction (‘Notice’) and Written Case together with an application for an extension of time within which to file the Notice (‘Application’). The Application was supported by an affidavit sworn by the applicant on 28 February 2024 (‘affidavit’).
[2]Criminal Procedure Act 2009, s 275(1).
If granted an extension of time, the applicant seeks leave to appeal against conviction on a single ground:
1. A substantial miscarriage of justice[3] has occurred, due to:
[3]Criminal Procedure Act 2009 section 276(1)(c).
a.the lack of relevant disclosures by the prosecution and/or Victoria Police; and
b. new material evidence is available; and
c.the appellant did not wish to admit his guilt when entering the plea of guilty; and
d. the appellant entered the plea under duress.
For the reasons that follow, the Application should be refused.
The application for extension of time
The principles guiding the discretion to extend time were summarised in Madafferi[4]. Informed by what the interests of justice require in the circumstances of the particular case, the principles focus on two factors. First, the length of the delay and the reason for it. Second, the prospects of the proposed appeal succeeding should the extension be granted.
[4]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (‘Madafferi’).
The applicant was unrepresented at the time he filed the Application. In it the applicant advanced the following reasons for failing to serve a notice within the prescribed time:
•He obtained certain documents which the prosecution had failed to disclose through a review of his lawyer’s files and a FOI process which concluded in May 2022.
•The FOI process was intended to gather a ‘series of relevant false/misleading statements’ made by the complainant to Victoria Police between November 2016 and July 2018.
•He was involved in ‘conflicting legal obligations’ in the Supreme Court of Victoria, Family Court of Australia and Fair Work Commission between prior to his release from custody and January 2024.
•He experienced multiple traumatic and life threatening events while in custody.
•He has experienced ‘exceptional trauma’ associated with and subsequent to the events resulting in his conviction including the loss of contact with his sons, loss of his career as a teacher and a diagnosis of Autism Spectrum Disorder.
•His mental health has been ‘significantly impacted’ by the events of the ‘last years’ and the preparation of the documentation necessitated the reliving of the trauma associated with them.
The affidavit details:
•Various FOI processes commenced ‘some months’ before the applicant’s release. Letters from Victoria Police and the Department of Families, Fairness and Housing (‘DFFH’) in response to the applicant’s FOI requests are annexed. The applicant states that these processes showed that relevant documents undisclosed to him include:
oAn additional statement of the complainant dated 9 October 2018.
oUndated statements of the complainant.
oVarious victim impact statements.
oCCTV footage of the complainant leaving the scene.
oFalse complaints against the applicant’s parents.
•Various matters said to be ‘additional evidence’ including:
oThat the CCTV footage in the applicant’s solicitor’s file did not contain vision of the complainant leaving the property on 24 July 2018.
oThat the applicant’s DNA was not found on two lengths of tape and a cable tie found at the scene on 24 July 2018. A report dated 25 March 2019 from the Biological Services Group of Victoria Police is annexed.
•Allegations that the scene of the 24 July 2018 events had been tampered with.
•Details of the various litigation in which the applicant was involved in the family jurisdiction, Supreme Court and the Fair Work Commission.
•Details about events that the applicant said he experienced in custody and the break down of his relationship.
•An account of ‘events following separation’, ‘events following the decision of the Family court’, ‘Events of 24 July 2018’ and ‘Events following 24 July 2018’. The applicant states that he was ‘set up’ by the complainant on 24 July 2018. This followed him advising her by email on 20 July 2018 that their children wanted to remain with him for the following week. A copy of the email is annexed. The applicant states that the complainant invited him to the former matrimonial home at 3pm on 24 July 2018. A note said to evidence the invitation is annexed. The applicant states that he arrived early and waited in the backyard to look at some ferns and his children’s budgerigars. He re-angled the CCTV camera at the backdoor so that he would not appear on film if he collapsed or broke down. The complainant arrived and began yelling at him. She hit him with a broom. She dropped her bags and he saw that they contained tape and cable ties. He picked the items up to help her inside. When the children arrived the complainant yelled ‘help’. He went to reassure them. The applicant then saw the complainant fall over the neighbouring fence. He collected what he thought were his keys, but in fact were the complainant’s, prior to his departure.
In written submissions the respondent opposed the Application, arguing that the reasons for the delay provided in the affidavit are inadequate, particularly in light of the length of the delay, that the applicant had originally pleaded guilty and that he has been in the community on parole. The respondent further contends that the proposed application for leave to appeal is without merit.
The accepted prosecution case
Before turning to an analysis of the merits of the proposed appeal, it is necessary to say something of the prosecution case, accepted as accurate by the applicant at the time of his plea.
The applicant and his wife separated in November 2016. She and their three children continued to live in the matrimonial home. Immediately following separation, police obtained a family violence intervention order (‘FVIO’) to which the applicant was the respondent. The applicant breached the FVIO on a number of occasions before it expired in January 2018. After one of these breaches, the applicant’s wife arranged for CCTV cameras to be installed at the marital home.
On 24 July 2018 while the three children, aged 8, 10 and 12 years, were at school and his wife at work, the applicant attended the marital home. CCTV cameras captured him assessing the property and entering a side gate into the rear yard. He used a broom to reposition a CCTV camera so that it pointed away from the back of the house. He then lay in wait for his wife to arrive home.
At 3.11 pm she did so, walking to the rear sliding door while attempting to retrieve her house key from her handbag. The applicant ran at her from behind, grabbing her around the torso and restraining her. She attempted to scream for help but the applicant told her to be quiet as he dragged her towards the back of the house. He then pinned her down, stating that he wanted to talk about their separation. The applicant’s wife tried to placate him by saying that the children would be home soon. He said he wanted to go inside to talk and picked up his wife’s keys and handbag.
At that point the applicant’s wife tried to run away. The applicant grabbed her and put her in a tight headlock. He forced her to the ground and pinned her down, trapping her arms to her sides.
During the struggle, the applicant attempted several times to tape over his wife’s mouth with duct tape which he had brought with him. He also attempted to tie her hands together with cable ties and threatened to punch her if she did not cooperate. She stopped struggling and said that she would not resist. The applicant bound her hands with the cable ties and forced her inside the house.
Once inside the applicant locked the door and bound his wife’s feet together with cable ties he had retrieved from under his jumper. She observed that he had a rope tied around his waist and he said ‘I’ve got things under here that you don’t want to see’. She asked what he was going to do when the children got home. He said that they wouldn’t because his mother would be there soon and that he had told his mother that he was coming to talk to her. The applicant’s wife asked if he was going to kill her. He replied ‘it depends what you tell me, but I probably will’.
The applicant’s wife could hear one of the children at the back door and screamed for help. The applicant told her to ‘shut up’ and went to the door to speak to the child. His wife managed to get her hands but not feet free. She managed to move through the house and unlock the front door before stumbling across the front yard to a neighbour’s fence. Her escape from the house was captured on CCTV.
The applicant’s wife saw someone she knew in the street and yelled ‘call the police, Dan is going to kill me’. She stumbled towards the neighbour’s front door, banging on the windows, yelling ‘let me in, Dan is going to kill me’. The neighbour took her in and immediately dialled 000.
The applicant fled from the scene. He was captured on CCTV footage departing the property at 3.30pm. Police arrived about 10 minutes later. They found the wife’s mobile phone in the garden bed near the side gate along with several lengths of duct tape with the wife’s hair attached and a pair of sunglasses belonging to the applicant.
A subsequent medical examination of the wife revealed she had sustained slight bruising to her head and superficial bruises and abrasions to her arms, wrists and hands. She also had bruising to her hips and left thigh.
The following day the applicant was arrested and interviewed. He admitted to having seen his wife the previous day but otherwise made no comment except when asked about the whereabouts of his wife’s keys. He said that he gave them to his mother to hand back. The applicant’s mother attended the police station and produced the keys from her handbag saying that the applicant had obtained them ‘by accident’.
Applicant’s contentions
The applicant’s Written Case was drafted without the assistance of a lawyer. We understand the applicant to argue that four particulars render his conviction a miscarriage of justice.
Lack of disclosure
The applicant argues that as a result of a FOI request to Victoria Police and a review of ‘the lawyer’s files’, the following evidence was not disclosed:
(a)Further statements made by the complainant, some undated and one dated 9 October 2018.
(b)Documents from Victoria Police ‘identifying a substantial history of the complainant making a series of false allegations’ against him.
(c)Camera footage of the complainant leaving the scene.
The applicant further contends that at the time the complainant made her statement against him, she also made false and/or misleading statements against his parents. These were ‘demonstrably false’ and used in an attempt to implicate his parents in the 24 July 2018 events and in obtaining a ‘vexatious FVIO’ against them.
‘New’ evidence
The applicant contends that there is new evidence, namely:
(a)Documents in the possession of the DFFH which detail the ‘deliberate attempts of the complainant, by conspiring with her mother, to entrap and make false allegations’ against him.
(b)The decision of Mongan & Mongan [2017] FCCA 3358 which contains findings against the complainant, including that she committed family violence and staged events.
(c)The absence of his DNA on relevant items connected with the offending.
Did not want to make a guilty plea
The applicant contends that he did not wish to plead guilty and did so only for pragmatic reasons. These included the hope of a more lenient sentence, the cost of a trial and the desire to see his children.
Duress
The applicant contends that his period on remand was extremely traumatic and his desire to avoid prolonged incarceration pressured him to plead guilty.
‘Substantive case’
The applicant’s Written Case then details a number of allegations against the complainant under the heading ‘Substantive case on appeal’. These concern her alleged lack of credit and motive to make false claims against him. The applicant rehearses a history of FVIO applications and family law related matters.
Respondent’s Contentions
The respondent contends that there is no miscarriage of justice in holding the applicant to his pleas of guilty. He understood the nature of the charges, he intended to admit his guilt and the facts supported the findings of guilt.[5]
[5]Meissner v The Queen (1995) 184 CLR 132 (‘Meissner’).
As to the particulars of the asserted miscarriage of justice, the respondent submits the following.
Disclosure
The asserted undisclosed material does not relate to whether the applicant misunderstood the nature of the charges or whether he intended to plead guilty to them. In any event, the 9 October 2018 statement together with the 24 July 2018 statement of the complainant formed the basis of the Amended Summary of Prosecution Opening on the plea. That document was accepted by the applicant’s then counsel as an accurate factual basis for sentence. The ‘further statements’, apparently a reference to ‘victim statements’ and ‘witness statements’ in the Victoria Police Freedom of Information letter, predate the applicant’s offending. The documents alleged to disclose the complainant’s false allegations again refer to documents predating the offending. The applicant has two prior findings of guilt for breaching an intervention order. The CCTV footage was disclosed. Still images from that footage were relied on at the plea.
‘New evidence’
Again the asserted material does not relate to whether the applicant misunderstood the nature of the charges or intended to plead guilty to them.
Guilty plea and duress
The applicant pleaded guilty and tendered a written apology. The making of an apology is inconsistent with the proposed appeal in so far as it asserts that the plea was not entered out of a ‘genuine consciousness of guilt’.[6] The applicant does not assert he was materially misadvised by any legal representative nor that he did not fully understand the nature of the charges to which he was pleading guilty. The asserted pragmatic considerations that influenced the applicant’s decision to plead guilty do not establish a miscarriage of justice.
[6]Weston (a pseudonym) v The Queen (2015) 48 VR 413; [2015] VSCA 354.
Analysis
This Court has adopted the following summary of principles as relevant to the issue of whether a plea of guilty ought to be set aside:[7]
(a)A plea of guilty, entered by a person who is of sound mind and understanding exercising a free choice in their own interests, will not be set aside on appeal unless the applicant demonstrates that a miscarriage of justice has occurred.[8]
(b)A person may enter a plea of guilty even though they do not believe that they are guilty of the offence for pragmatic reasons, such as, to avoid worry, inconvenience or expense, avoid publicity, to protect family or friends, or in hope of obtaining a more lenient sentence. But a plea entered on such a basis will not be set aside unless a miscarriage of justice is shown.[9]
(c)A miscarriage of justice may occur where it is demonstrated that the applicant did not understand the nature of the charge, or did not intend to admit guilt, or if, upon the facts admitted by the plea, the applicant could not in law be guilty of the offence, or the plea was induced by intimidation or improper conduct or fraud.[10]
(d)Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.[11]
(e)Applications to set aside a conviction on the basis that a plea of guilty should be set aside are approached with ‘caution bordering on circumspection’ because of the high public interest in the finality of legal proceedings and the principle that a plea of guilty by a person in possession of all the facts is normally taken to be an admission of each of the necessary legal elements of offence.[12]
[7]Gurrappaji v The Queen [2018] VSCA 187 (Priest, Beach and Weinberg JJA), [9] referring to R v BDC [2018] QCA 132, [6] (Philippides JA).
[8]Meissner, 141
[9]Meissner, 141, 157.
[10]Meissner, 157.
[11]Meissner, 143.
[12]R v Liberti(1991) 55 A Crim R 120, 122.
Applying these principles, the applicant’s assertion that this conviction amounts to a miscarriage of justice is entirely without merit.
The applicant’s stated pragmatic reasons for his plea of guilty do not amount to a miscarriage of justice. It was entirely open to him to choose to plead guilty because of the nominated factors, including his distress at his experience of custodial conditions, in the hope of a more lenient sentence. On the facts expressly admitted as accurate before the sentencing judge, the applicant was, in law, guilty of the offences. Further, the pragmatic reasons do not establish that the applicant did not understand the nature of the charge or did not intend to admit guilt. To the contrary, his written two page apology is evidence of his understanding and intent. It was relied upon by his counsel at the plea as indicating ‘a level of insight into the nature of the offending’. In it the applicant said:
· I deeply and sincerely regret my actions on the day of 24 July 2018.
· There is not a day that has gone by that I haven’t thought of what I did that day.
· I am utterly ashamed of the assault on [the applicant’s wife].
· They [the applicant’s children] trusted me on that day and were alarmed by their mother calling to them. … I have been deeply saddened by the trauma they have suffered and continue to experience.
· I understand that I need to be punished for my actions.
Character evidence relied upon by the applicant also spoke of his remorse. In particular a joint reference by his parents includes the following:
· We have discussed the incident of July 24th 2018 with Daniel and we know that he is extremely remorseful and ashamed of his actions on that day. He knows his actions have not only affected his wife, but also his boys, his family, his friends and the organisations he was associated with and supported. It is clear he would not want anything remotely like this to ever happen again, or for these people to be impacted again as they have on this occasion.
The applicant’s statement made in oral submissions that he wrote the apology only because he thought ‘that’s how things are done’ must be rejected. The observations of this Court in Jones[13] are apposite:
… the apology — unless it was a cynical device intended improperly to influence the judge to impose an unjustifiably lenient sentence — speaks eloquently as to the applicant’s consciousness of his guilt at the time that he entered his plea.[14]
[13]Jones v The Queen [2018] VSCA 11 (Priest, Beach and Niall JJA) (‘Jones’).
[14]Jones, [18].
It must also be remembered that the applicant’s first application to this Court was as to the asserted manifest excess of his sentence and proceeded on the assumption that his plea of guilty was made in consciousness of his guilt. The applicant’s much later assertion that he did not intend to plead guilty is ill at ease with the objective history of his conduct throughout this matter.
Turning then to the applicant’s complaint of non-disclosure and assertion of ‘new’ evidence, these matters may be addressed briefly.
Two of the items identified as non-disclosed were in fact disclosed. Both the 9 October 2018 statement of the complainant and the footage of her departing the scene on 24 July 2018 formed part of the materials on which the applicant was sentenced. Except for one ‘witness statement dated 17 August 2018’,[15] the remaining materials pre-dated the offending and, presumably, related to FVIO history which included a proven breach of the FVIO by the applicant. These remaining materials were irrelevant to the charges before the court.
[15]As identified in the Victoria Police FOI letter. This is likely to be the statement of a witness to the offending as contained in the hand-up brief served on the applicant.
The ‘new’ evidence is irrelevant and/or not ‘new’. As the DFFH letter makes plain, the existence of the documents is uncertain. If they do exist they relate to a period prior to 24 July 2018. The FCCA decision relates to a family law dispute and dates from 2017. The DNA results appear in a document dated 25 March 2019, some six months before the applicant entered his plea. There is no complaint that the relevant document was not disclosed to the applicant’s then lawyers after the service of the hand-up brief but before the entry of the plea.
In any event none of these materials concern whether the applicant misunderstood the nature of the charges or did not intend to plead guilty. Apart from the applicant’s ex post facto assertions, there is no material that would permit a conclusion that by his plea the applicant did other than freely admit his guilt. Further, the facts expressly admitted as accurate before the sentencing judge supported the finding of guilt on all four charges.
There is no prospect that the ground of appeal would be upheld. Given the history of the matter and the length of the delay in filing the Application, we add that the reasons for the delay in filing the Notice are wholly inadequate.
The Application must be refused.
Conclusion
The application for an extension of time will be refused.
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