R v BDC - [2018] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDC [2018] QCA 132

PARTIES:

R
v
BDC
(applicant)

FILE NO/S:

CA No 54 of 2018
DC No 475 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 13 October 2017 (Lynch QC DCJ)

DELIVERED ON:

22 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2018

JUDGES:

Sofronoff P and Philippides JA and Henry J

ORDER:

The application for an extension of time to appeal against conviction is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where the applicant pleaded guilty to one count of procuring a young person for carnal knowledge – where the applicant was sentenced to four years imprisonment, to be suspended after 12 months of the term was served, and operational for a period of four years – where the applicant lodged an application for an extension of time to appeal against her conviction – where the basis of the applicant’s proposed appeal is that her plea of guilty was not voluntarily entered – where the applicant alleged that she was forced or induced to enter a plea of guilty on account of advice allegedly given to her by her former legal representatives – where the applicant seeks to appeal her conviction on the basis that she believed she was not guilty of the offence – whether there is any good reason to account for the applicant’s delay in bringing the appeal – whether it is in the interests of justice to grant the applicant an extension of time to appeal against her conviction

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, applied
R v Liberti (1991) 55 A Crim R 120, applied
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on her own behalf
C N Marco for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Philippides JA and the order her Honour proposes.
PHILIPPIDES JA: On 13 October 2017, the applicant was arraigned and entered a plea of guilty to procuring a young person for carnal knowledge. She was sentenced on 29 January 2018 to four years imprisonment suspended after 12 months of the term was served, operational for a period of four years. The period of 108 days spent in presentence custody was declared as time served under the sentence.
Application for extension of time
The applicant lodged an application for an extension of time in which to appeal against conviction on 16 March 2018, the appeal against conviction being lodged some four months out of time.
In considering whether an extension of time to appeal should be granted, it is relevant to have regard to whether there is any good reason shown to account for the delay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BDC

Details

AGLC: R v BDC [2018] QCA 132
Case: [2018] QCA 132
Decision Date: 22 June 2018

CaseChat Overview and Summary

The applicant, BDC, has appealed against her conviction recorded on a guilty plea in the Supreme Court of Australia. BDC pleaded guilty to one count of procuring a young person for carnal knowledge and was sentenced to four years imprisonment, suspended after 12 months, and operational for four years. BDC has applied for an extension of time to appeal her conviction, arguing that her plea of guilty was not voluntarily entered due to alleged improper advice from her former legal representatives. BDC claims she was forced or induced to plead guilty, believing she was not guilty of the offence.

The court had to decide whether there was good reason for BDC's delay in bringing the appeal and whether it was in the interests of justice to grant her an extension of time to appeal against her conviction. The principles guiding the court's decision included the requirement for a miscarriage of justice to set aside a plea of guilty and the importance of the finality of legal proceedings. The court considered whether BDC's plea was induced by intimidation or improper conduct, and whether she understood the nature of the charge and intended to admit guilt.

The court found that BDC had not demonstrated a miscarriage of justice as her plea of guilty was voluntarily entered. The alleged advice from her former legal representatives did not constitute improper conduct as it was reasoned argument that left BDC free to make her choice. The court also noted that BDC had ample opportunity to file an application to vacate her plea of guilty but did not do so. The court concluded that it was not in the interests of justice to grant BDC an extension of time to appeal against her conviction.

The application for an extension of time to appeal against conviction is refused.

Orders

Orders of the court

The application for an extension of time to appeal against conviction is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The following principles are relevant to a consideration as to whether a plea of guilty ought to be set aside:(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.[3](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.[4](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.[5](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.[6](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.[7][3]Meissner v The Queen (1995) 184 CLR 132 at 141.[4]Meissner v The Queen (1995) 184 CLR 132 at 141, 157.[5]Meissner v The Queen (1995) 184 CLR 132 at 157.[6]Meissner v The Queen (1995) 184 CLR 132 at 143.[7]R v Liberti (1991) 55 A Crim R 120 at 122.Consideration The applicant filed written submissions and additionally made oral submissions before this Court. The crux of the applicant’s submissions was that the plea of guilty was not voluntarily entered but rather was forced or induced by her counsel’s conduct. The conduct relied upon is advice said to have been given that:(a)the judge and jury would take pity on her daughter;(b)the applicant could be sentenced to “life”;(c)the applicant should plead guilty to the “lesser charge”; and(d)the most the applicant would receive on sentence would be “7 to 12 months”. The applicant further asserted that she was not guilty of the offence and that she believed that she was not guilty of the offence, but she accepted that she did not prevent the sentence from proceeding. It is also to be observed that the applicant had been arraigned and had entered a plea of guilty some three and a half months before she was sentenced. As the respondent submitted, the applicant had ample opportunity in the period before sentence to file or make an application to vacate her plea of guilty but no such application was made. Furthermore, the sentencing judge provided the applicant with an opportunity to confer with her counsel after submissions were completed and before sentence was passed. Nothing was raised concerning the plea as a result of that opportunity.

CITATION:	R v BDC [2018] QCA 132
PARTIES:	R v BDC (applicant)
FILE NO/S:	CA No 54 of 2018 DC No 475 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Ipswich – Date of Conviction: 13 October 2017 (Lynch QC DCJ)
DELIVERED ON:	22 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	15 June 2018
JUDGES:	Sofronoff P and Philippides JA and Henry J
ORDER:	The application for an extension of time to appeal against conviction is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where the applicant pleaded guilty to one count of procuring a young person for carnal knowledge – where the applicant was sentenced to four years imprisonment, to be suspended after 12 months of the term was served, and operational for a period of four years – where the applicant lodged an application for an extension of time to appeal against her conviction – where the basis of the applicant’s proposed appeal is that her plea of guilty was not voluntarily entered – where the applicant alleged that she was forced or induced to enter a plea of guilty on account of advice allegedly given to her by her former legal representatives – where the applicant seeks to appeal her conviction on the basis that she believed she was not guilty of the offence – whether there is any good reason to account for the applicant’s delay in bringing the appeal – whether it is in the interests of justice to grant the applicant an extension of time to appeal against her conviction Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, applied R v Liberti (1991) 55 A Crim R 120, applied R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The applicant appeared on her own behalf C N Marco for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent