R v C, J; R v H, T - [2015] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, J; R v H, T
[2015] SASCFC 100
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)
30 July 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
The applicants pleaded guilty in the District Court in 2002 to sexual offending committed against the second applicant’s 23 year old daughter and nine year old grandniece – convictions were entered on the basis of those pleas – applicants seek an extension of time within which to apply for permission to appeal against their convictions – applicants seek to withdraw their pleas of guilty on the basis that allowing the pleas to stand would constitute a miscarriage of justice – applicants allege the Court relied upon illegally obtained evidence and that their guilty pleas were obtained by coercion or harassment from their legal advisors – discussion and application of the principles on setting aside convictions entered after a plea of guilty.
Held: Bampton J (Kourakis CJ and Nicholson J agreeing):
1. Extension of time within which to bring the applications refused.
2. Applications for permission to appeal dismissed.
Search Warrants Act 1985 (NSW) s 24A(2); Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
Bunning v Cross (1978) 141 CLR 54; [H] v The Queen; [C] v The Queen [2010] HCASL 223; Maxwell v The Queen (1996) 184 CLR 501; Meissner v The Queen (1995) 184 CLR 132; R v Brooks (2007) 96 SASR 479; R v [C] & [H] [2003] SASC 319; R v Chiron [1980] 1 NSWLR 218; R v Cincotta (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ At CL, Grove and Allen JJ, 1 November 1995); R v Davies (Unreported, New South Wales Court of Criminal Appeal, 16 December 1993, Badgery-Parker J); R v Ferrer-Esis (1991) 55 A Crim R 231; R v Hura (2001) 121 A Crim R 472; R v Pugh (2005) 158 A Crim R 302; R v Murphy [1965] VR 187; R v Sagiv (1986) 22 A Crim R 73; R v Wilkes (2001) 122 A Crim R 310, considered.

R v C, J; R v H, T
[2015] SASCFC 100
Court of Criminal Appeal: Kourakis CJ, Nicholson and Bampton JJ

KOURAKIS CJ. I would dismiss the applications for permission to appeal of Mr C and Ms H for the reasons given by Bampton J.
NICHOLSON J. I agree with Bampton J.
BAMPTON J.
Introduction
By Notices of Application for Permission to Appeal filed 7 February 2013, C, J and H, T (the applicants) seek an extension of time within which to apply for permission to appeal against convictions recorded in the District Court on 21 May 2002. The applications are over 10 years out of time.
Background
Each applicant pleaded guilty in the District Court to the following offences charged on a…

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.

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Details

Case: [2015] SASCFC 100
Decision Date: 30 July 2015

CaseChat Overview and Summary

The applicants, Mr C and Ms H, sought an extension of time to appeal against convictions entered in the District Court in 2002, following their guilty pleas to charges of sexual offending. The applications were made over 10 years out of time. The applicants sought to withdraw their pleas, arguing that allowing the convictions to stand would constitute a miscarriage of justice, primarily due to allegations that illegally obtained evidence was relied upon and that their guilty pleas were coerced or resulted from harassment by their legal advisors.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the applicants should be granted an extension of time to appeal and, consequently, whether their guilty pleas should be set aside. This required the court to consider the principles governing the withdrawal of guilty pleas and the circumstances under which a miscarriage of justice might be found, particularly when an application for an extension of time is significantly out of time. The court had to determine if the applicants had demonstrated a satisfactory reason for the extensive delay and, if not, whether refusing an extension would result in a miscarriage of justice.

The court applied the principles established in *R v Wilkes*, which require consideration of whether legal advice was imprudent or inappropriate, whether the pleas were attributable to a consciousness of guilt, and whether the evidence demonstrates a question about the applicants' guilt. The court found that the applicants had failed to establish any of these grounds. Specifically, they did not demonstrate that their legal advice was inappropriate, nor did they show that their pleas were not a result of their consciousness of guilt. The evidence before the court was found to confirm the applicants' guilt. Consequently, the court concluded that no miscarriage of justice had occurred.

The court refused to grant Mr C and Ms H an extension of time within which to apply for permission to appeal and dismissed their applications.

Orders

Orders of the court

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Background

Background to the litigation

By Notices of Application for Permission to Appeal filed 7 February 2013, C, J and H, T (the applicants) seek an extension of time within which to apply for permission to appeal against convictions recorded in the District Court on 21 May 2002. The applications are over 10 years out of time.Background Each applicant pleaded guilty in the District Court to the following offences charged on a District Court Information dated 20 August 2001 (the Information):·Count 1: Administering a stupefying drug to commit an indictable offence (against V1);·Count 2: Rape (of V1);·Count 6: Act of gross indecency (against V2);·Count 8: Unlawful Sexual Intercourse with a person under the age of 12 (against V2);·Count 9: Act of gross indecency (against V2); and·Count 10: Act of gross indecency (against V2). Mr C also pleaded guilty to counts 12 and 13 on the Information, namely, two counts of attempting to pervert the course of justice. The victim of counts 1 and 2, V1, is the daughter of Ms H; and the victim of the other sexual offences, V2, is a great niece of Ms H. The offending In 1998 and 1999, the applicants were living together in a de facto relationship at North Haven. By late 1999, they had sold their home and were caravanning around Australia. Whilst travelling through Victoria, the applicants committed sexual offending against an adult female, FB, in Victoria. As the applicants had moved on to New South Wales by the time FB reported the matter, the Victorian police obtained an extra-territorial search warrant in New South Wales. Acting on this warrant, on 30 September 1999, the police searched the applicants’ caravan in Deniliquin, New South Wales. A number of videotapes and a Teledex containing names and contact details of the applicants’ friends and relatives in South Australia were seized from the caravan. The videotapes and Teledex were transferred to Victoria pursuant to a Ministerial arrangement for things seized in connection with extra-territorial offences, provided for in s 24A(2) of the Search Warrants Act 1985 (NSW) (Ministerial arrangement). One of the seized videotapes was a ‘micro’ cassette tape (the video). The video when played depicted Mr C removing the underwear of an, as then, unidentified female and having sexual intercourse with her. The female appeared to be ‘sleeping’. Another videotape contained a portion of this vision which had been spliced together with pornographic films (the spliced video). Having viewed these tapes, the Victorian police contacted the South Australian police (SAPOL) who conducted investigations into the identity of the unconscious female. On 13 October 1999, the Victorian police brought a copy of the video to South Australia. As SAPOL suspected Ms H’s daughter was the unconscious woman, they showed the video to V1 in October 1999. V1 identified herself in the video and stated she was positive that she was under the influence of some drugs at the time the video was made and that she would never have consented to having sex with Mr C.

Evidence

Evidence Before The Court

The applicants asserted in their April 2014 affidavits that they told their advisors that they were not guilty, that they were not told what the balance of the charges were, that Mr Tothill told Ms H she and Mr C had to plead guilty and that he threatened to walk out of the joint conference.Mr C’s evidence Mr C agreed that he is the person shown on the video having sex with V1 but that he believed she was conscious throughout.[28] He said he did not administer Rohypnol to V1 but counsel told him that it was found in his car so he was guilty for that. He admitted that he sent the letters that were the subject of counts 12 and 13. He said that he was not guilty of the balance of the offences involving V2.[28] T 7 Mr C said that Mr McEwen advised him to plead guilty and said “the Judges have seen the video and it will be admitted in court, therefore the only choice is to plead guilty”. He asserted he received a phone call from Ms H relaying the message that Mr Tothill had told them both to plead guilty.[29][29] T 9. In his affidavit sworn 21 July 2014, Mr C said that he and Ms H agreed not to plead guilty after the phone call in which Ms H relayed Mr Tothill’s advice. He said in evidence that when Mr McEwen advised the same thing on 6 May 2002 they had no choice but to plead guilty. Having asserted he did not provide written instructions to plead guilty, Mr C was shown Exhibit TMAD1 to Mr Dibden’s affidavit and acknowledged that he gave signed instructions to Mr Dibden to plead guilty to Counts 2, 12 and 13 on 6 May 2002. Mr C was then asked whether he listened to the legal argument that continued on the voir dire after he gave those instructions. His answer was that he “could not understand very much in those days going back I wasn’t very good at my English, I didn’t understand very much”.[30][30] T 22. Mr C said that he pleaded guilty to rape in the morning on 6 May 2002 and was shown the video in the afternoon. He said he did not see the video before pleading guilty and he was told it was already admitted. This evidence is at odds with his affidavit dated 10 April 2014 wherein he says he did not want to make a decision of such magnitude on 6 May 2002 after seeing the video for the first time and after discussing the matter with Ms H and his counsel very briefly. Mr C also said when asked by the Chief Justice whether the video was shown to him before or after pleading guilty, “ I can’t really recall, I think it was before, your Honour”.[31][31] T 67. Mr C said the video had been edited to remove “how it began in the lounge room, we were having a drink and mucking around and things started in the lounge room, in their part they only show the parts they wanted to show, they edited the rest and took all the sound and everything out of it.”[32] He said “they moved things around [in the video] to make it look like things that wasn’t there”.[33] He said he told Mr McEwen that the tape was not authentic and had been tampered with but Mr McEwen did not want to talk about it with him. [32] T 17.[33] T 17.

Decision

Reasons for decision

KOURAKIS CJ (dissent) NICHOLSON J (dissent) BAMPTON J (dissent)

The applicants have not, in my view, disclosed any satisfactory reason for the delay in pursuing their applications. As such, the question of whether an extension of time should be allowed is dependent upon a consideration of whether there would be a miscarriage of justice if no extension of time is granted.Conclusion None of the complaints made by the applicants are made out. Having regard to the three matters identified in R v Wilkes[52] to be considered in determining whether allowing the pleas to stand will constitute a miscarriage of justice:·The applicants have failed to establish their legal advice was imprudent or inappropriate;·They have failed to demonstrate that their pleas entered on 6 May and 21 May 2002 were not attributable to a consciousness of guilt; and ·The evidence before the Court demonstrates there is no question about the applicants’ guilt.[52] R v Wilkes (2001) 122 A Crim R 310. There has been no miscarriage of justice. I would refuse to grant Mr C an extension of time to apply for permission to appeal and would dismiss the application. I would refuse to grant Ms H an extension of time to apply for permission to appeal and would dismiss the application.

Ratio Decidendi

Legal Principle Established

Established by:

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