R v Dittmer

[1992] QCA 81

IN THE COURT OF APPEAL [1992] QCA 081

SUPREME COURT OF QUEENSLAND

C.A. No. 17 of 1992

T H E Q U E E N

v.

PETER JOHN DITTMER

(Applicant)

JUDGMENT - THE COURT

Delivered the twenty-third day of April 1992

The applicant, who was on 19 July 1991 convicted in the

District Court of 26 counts of unlawful possession of a motor

vehicle with a circumstance of aggravation and two counts simply of unlawful possession of a motor vehicle, applies for an extension of time for leave to appeal against his conviction. The applicant pleaded guilty to all the charges. Notice of the

application was given on 15 January 1992 and was therefore given well after the time the Criminal Code prescribes: s.671. The applicant also seeks leave to appeal if the extension is granted.

The basis of the application for an extension of time is

principally that on 17 December 1991, some five months after the

conviction of the applicant, one D'Arrigo succeeded in an appeal to the Court of Criminal Appeal against a conviction of unlawful

possession of a motor vehicle, in circumstances which induced

the applicant to think he might himself have some chance of

success on appeal. The evidence shows that the applicant took steps promptly, when he heard of the D'Arrigo decision, to obtain legal aid and the application was filed fairly soon after the applicant, having had some difficulty in doing so, contrived

to contact the Legal Aid Office.

The applicant, who was represented in this Court by Mr.

Cuthbert, relied upon the record of the proceedings before the

District Court and also sought to have this Court receive an

affidavit by one Kevin Carmont to supplement that material. Mr. Byrne, for the Crown, objected and we received the affidavit, reserving our decision on the question whether it would be accepted as additional evidence.

Mr. Cuthbert accepted that the Court may consider, on an application for an extension of time to apply for leave to appeal, whether there has been a miscarriage of justice and whether the proposed appeal has merit: Brown [1985] 2 Qd.R. 126 at 132, 135. Often this may require no more than a preliminary examination of the prospects of success, in the event of grant of an extension. In the circumstances of the present case, it seems desirable to go into the substance of the matter in some detail, although in the end our conclusion is that the

applicant's proposed appeal has no solid foundation.

The facts placed before the District Court showed that the offences related to a police operation known as "Operation Trident", which was apparently intended to break up a car

stealing racket in south-east Queensland. The police used a man called Reisenweber to take part in the theft of motor vehicles and their subsequent disassembly on Reisenweber's property. Parts from the cars were sold. All this was apparently thought

to be authorised by an Attorney-General indemnity which

Reisenweber received on 5 October 1989; in D'Arrigo, the Court

of Criminal Appeal held the indemnity to be ineffective. Vehicles were stolen from the Beenleigh and Gold Coast areas.

During part of the period of the operation, they were stolen "on

order" to satisfy requests for particular vehicles. On removal to Reisenweber's property, the identity of the vehicles was

concealed by changing engine and chassis numbers and obtaining

new registration papers.

The applicant was involved in the scheme from January 1990,

but there is no suggestion that he appreciated that any of the

participants was supposedly acting with official authority. As

far as he was concerned, he was merely participating in a car

stealing organisation, which he assisted principally by working on the vehicles at Reisenweber's property; he also kept lookout on occasion while vehicles were stolen and drove stolen vehicles to Reisenweber's property for appropriate treatment.

The affidavit we are asked to receive, made by Carmont, merely seeks to add some additional details to this story. It is plain that no such special circumstances exist as to justify reception of the affidavit as additional evidence and it will not be admitted.

The counsel who appeared before the District Court referred the judge to the unusual circumstances, namely that the applicant was a participant in a scheme promoted by the police, but did not suggest that provided any defence. Mr. Cuthbert

contended, on the basis of the conclusions of the Court of Criminal Appeal in D'Arrigo, that the Trident Operation was

wholly and grossly illegal and that the Court should not in any way indicate approval of it. He suggested that it would be consistent with this policy to set aside convictions of persons such as the applicant who were involved in the operation, even if without any knowledge of its supposed official sanction.

Although the applicant was guilty of the offences with which he

was charged and did not attempt to resile from his plea, there had been a miscarriage of justice, so Mr. Cuthbert said, within the meaning of s.668E of the Crimiinal Code. Mr. Cuthbert did

not advance any contention that the applicant was entrapped.

The starting point is the decision of the Court of Criminal

Appeal in D'Arrigo. The Court there held that the involvement

of Reisenweber in the Trident Operation was procured by an indemnity, purporting to undertake that Reisenweber would not be

prosecuted in respect of any act "reasonably and necessarily

done by him" in the operation and purporting to indemnify

Reisenweber accordingly, on a certain condition which need not

be discussed.

It was held, as we have mentioned, that the indemnity was not effective to authorise any unlawful conduct. D'Arrigo was convicted, after a trial, on evidence in addition to that of Reisenweber, but it was held that in the absence of

Reisenweber's evidence there was no substantial case against

him. The Court was of opinion that the primary judge should
have excluded Reisenweber's evidence:

"... where evidence has been obtained by unlawful conduct, it may appear that its receipt in Court gives judicial approval to such conduct. See Bunning v. Cross (1977- 8) 141 C.L.R. 54 at p.74. It is for this reason that there is a discretion to exclude such evidence upon a consideration of the competing public interests in bringing to conviction those who commit offences and to not extending curial approval to official misconduct" (per Dowsett J. at p.4).

It was held that since illegalities, counselled or procured by

persons in authority, led to the obtaining of Reisenweber's

evidence, that evidence was so "tainted by illegality as to dictate its exclusion" (per Dowsett J. at p.6). Hence the

success of the D'Arrigo appeal.

The present case differs from D'Arrigo in that the applicant here admitted his guilt; there was no necessity to call evidence in the District Court from Reisenweber or any other person. Nor does it appear from the material that, had there been a trial, Reisenweber's evidence would have been

necessary to make the Crown case. For the applicant to succeed, it must be held that the illegality connected with the operation

vitiated the applicant's conviction directly. There appear to be no special circumstances associated with the applicant's

case; the general proposition which would seem to follow from Mr. Cuthbert's submission is that if serious offences are

committed in the course of police operations the subject of an invalid purported indemnity, guilty persons having no knowledge

of the purported indemnity or police involvement should not be convicted and if they are, their convictions should be set aside.

Mr. Cuthbert admitted that he had been unable to find any authority directly supporting his contentions. We were referred to R. v. Murphy [1965] V.R. 187 in which it was said, following

previous authority, that save in exceptional circumstances an

appeal against conviction based on a plea of guilty can succeed

only if:

1.The appellant did not appreciate the nature of the charge

or did not intend to admit he was guilty of it, or

2.Upon the admitted facts, he could not in law have been

convicted of the offence charged (p.188).

One of the judges, Sholl J., denied that those two rules were "exhaustive of all possible cases of miscarriage of justice"; he referred as an example to cases where an accused person who

denies his guilt has been induced by threats to plead guilty

(p.190). A conviction obtained by fraud, even on a plea of

guilty, may also be liable to be set aside: Hallahan v.

Campbell; Ex parte Campbell (No. 2) [1964] Qd.R. 337. In R. v. Enright [1990] 1 Qd.R. 563, the Court of Criminal Appeal referred with approval to the remarks of Sholl J. and considered, in an appeal against a conviction on a plea of guilty, whether there had been a miscarriage of justice (p.568).

In various situations, convictions have been quashed in

England after pleas of guilty, for example when the plea was

equivocal or made after improper pressure from the judge: see Archbold 1992, Volume 1, pp.1152, 1153. But it is difficult to

imagine any circumstances in which, there being no suggestion of

any impropriety or irregularity affecting the plea, a conviction on a plea of guilty by a person who is in truth guilty of the charge laid could amount to a miscarriage of justice. In Vella (1984) 14 A.Crim.R. 90, the Victorian Court of Criminal Appeal

considered cases following Murphy (above). The Court accepted
the views of Sholl J. in that case as correct, but remarked:

"The jurisdiction of this Court to allow an appeal against a conviction entered upon a plea of guilty is not in doubt ... Necessarily, however, the occasions on which an appeal will be allowed where there has been a plea of guilty will be very rare" (p.92).

We respectfully agree. It is plain, in our opinion, that there

was no miscarriage of justice in the present case. Any illegalities committed by those who conceived and carried into

effect Operation Trident cannot excuse the applicant's breaches of the law, nor is there any basis for suggesting that it was unjust to convict him for those breaches.

For these reasons, we consider that the proposed appeal is

without substance; the application for an extension of time
will be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 17 of 1992

T H E Q U E E N

v.

PETER JOHN DITTMER

(Applicant)

_______________________________________________

Mr. Justice Pincus Mr. Justice Davies Mr. Justice McPherson

_______________________________________________

Judgment of the Court delivered on 23 April, 1992.

_______________________________________________

Application for extension of time for leave to appeal

against conviction dismissed.

_______________________________________________

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 17 of 1992

Before the Court of Appeal

Mr. Justice Pincus

Mr. Justice Davies

Mr. Justice McPherson

T H E Q U E E N

v.

PETER JOHN DITTMER

(Applicant)

JUDGMENT - THE COURT

Delivered the twenty-third day of April 1992

MINUTE OF ORDER:The application for an extension of time for leave to appeal against conviction is dismissed.

CATCHWORDS: APPEAL AND NEW TRIAL - PRACTICE - TIME - EXTENSION - Applicant convicted of 26 counts of unlawful possession of a motor vehicle following successful appeal by one convicted in similar circumstances - whether illegality of Trident Operation vitiated conviction despite guilty plea - whether miscarriage of justice.

Counsel:	B.M. Byrne for the Crown W. Cuthbert for the Applicant
Solicitors:	The Director of Prosecutions for the Crown The Legal Aid Office for the Applicant
Hearing Date(s):	14 April 1992