R v EP

Case [2020] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

R v EP [2020] QCA 109

PARTIES:

R
v
EP
(appellant/applicant)

FILE NO/S:

CA No 124 of 2018
DC No 568 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 5 December 2017 (Fantin DCJ); Date of Sentence 18 April 2018 (Morzone QC DCJ)

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2019

JUDGES:

Morrison and Philippides JJA and Buss AJA

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where the appellant pleaded guilty to four counts of rape and one count of indecent treatment of a child under 16, under 12 and under his care – where the offences involved a five year old female child complainant who was left at her home with the appellant in the early hours of the morning – where the prosecution case was based on, among other evidence, disclosures made by the complainant to her parents and a section 93A recording with Police – where the appellant contended that his pleas of guilty should be set aside due to his lack of understanding of his pleas of guilty – whether the appellant understood the nature of the charges – whether the appellant intended to admit that he was guilty to the charged offences – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to concurrent terms of imprisonment, the most significant being nine years’ imprisonment for count 3 (penile anal rape) – where the applicant submits that he was informed by Legal Aid that the contents of a psychiatric report favoured him more than the case that was put forward by the Crown and that the s 93A interview involved putting words in the complainant’s mouth – where the applicant also submits that the cases relied upon by the Crown at sentence were irrelevant because they involved serious rape which did not occur in this case – where the respondent submits that the offending was objectively very serious, the trial judge generously took into account mitigating factors, and the comparable cases indicate that the sentences imposed were open to the trial judge – whether the overall sentence was manifestly excessive in all the circumstances

Liberti v The Queen (1991) 55 A Crim R 120, cited
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited
R v Boag (1994) 73 A Crim R 35, cited
R v D[2003] QCA 88, considered
R v Free; Ex parte Attorney-General (Qld)[2020] QCA 58, cited
R v MBJ[2010] QCA 211, considered
R v Mundraby[2004] QCA 493, cited
R v…

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R v EP [2020] QCA 109
Case
[2020] QCA 109
Decision Date

CaseChat Overview and Summary

In the matter of R v EP, the appellant, EP, appealed against his convictions for four counts of rape and one count of indecent treatment of a child under 16, under 12 and under his care. The appeal centred on whether his pleas of guilty should be set aside due to a lack of understanding of the charges and whether a miscarriage of justice occurred. Additionally, the appellant sought leave to appeal against the sentence imposed, arguing that it was manifestly excessive.

The legal issues before the court were whether the appellant understood the nature of the charges, intended to admit guilt, and if a miscarriage of justice had occurred. The court also considered whether the sentence was manifestly excessive or inadequate, taking into account the appellant's submissions regarding the psychiatric report, the relevance of the Crown's cases at sentencing, and mitigating factors.

The court found that the appellant had been informed by his barrister that anal rape was alleged and supported by DNA evidence. This was different from what the appellant had previously been told and it shocked him. Despite this, the court concluded that the appellant understood the nature of the charges and intended to admit guilt. Therefore, the appeal against conviction was dismissed. Regarding the sentence, the court found that the trial judge had taken into account mitigating factors and the comparable cases indicated that the sentences imposed were open to the trial judge. Therefore, the application for leave to appeal against sentence was refused.

The final orders were that the appeal against conviction was dismissed and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant principles applicable when a plea is sought to be set aside may be summarised as follows:1.It is not easy task for an appellant seeking to set aside a plea of guilty. It is, as Muir JA (with whom Margaret Wilson AJA agreed) stated in R v Wade,[2] for good reason, that courts “exercise great caution in determining applications to set aside or withdraw guilty pleas”. This is because the proper administration of criminal justice depends on the ability of courts to proceed on the basis that a plea of guilty is made in the exercise of the accused’s free choice.[3] The Court’s caution “bordering on circumspection” as Kirby P put it in Liberti v The Queen,[4] in a passage adopted by Jerrard JA in R v Mundraby:[5][2][2012] 2 Qd R 31 at [44].[3]Meissner v The Queen (1995) 184 CLR 132 at 148 per Deane J.[4](1991) 55 A Crim R 120 at 122.[5][2004] QCA 493 at [21].“… rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence ...”2.Accordingly, as stated in Meissner v The Queen[6] by Brennan, Toohey and McHugh JJ:“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. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.”3.As also observed in Meissner by Dawson J,[7] a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt, but the entry of a plea of guilty upon such grounds (including to avoid worry, inconvenience, expense, or publicity; to protect others; or in the hope of obtaining a more lenient sentence than if convicted after a plea of not guilty), nevertheless “constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred”.4.Ordinarily, as Dawson J stated, a miscarriage of justice will only be shown “where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence”.[8] However, the circumstances capable of amounting to a miscarriage of justice in this context are not to be restricted or circumscribed, although they must be such as to indicate that the plea of guilty was not “really attributable to a genuine consciousness of guilt”: Mundraby,[9] per McPherson JA citing R v Murphy[10] and R v Boag.[11]5.As Muir JA noted in Wade at [51], it will normally be impossible to show a miscarriage of justice unless an arguable case or triable issue is also established.[12][6](1995) 184 CLR 132 at 141.[7](1995) 184 CLR 132 at 157.[8](1995) 184 CLR 132 at 157.[9][2004] QCA 493 at [11].[10][1965] VR 187.[11](1994) 73 A Crim R 35 at 37.[12]See also R v DBS [2020] QCA 1 at [24] per McMurdo JA (with whom Crow J agreed) and R v Coker [2013] QCA 315 at [8] per Holmes JA (as her Honour then was, with whom Atkinson J agreed).The prosecution evidence

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant made the following additional assertions in his written submissions as to sentence which also touch on the conviction appeal. In support of his sentence application, the appellant submitted that he had felt “under duress or coerced” to plead guilty to all of the offences because his barrister had told him “false information regarding evidence”, including that the appellant’s DNA had been found in the complainant’s rectum. The appellant submitted that he did not know what that meant at the time. The appellant also submitted that his barrister “confused” the judge during his arraignment, put him in an awkward position regarding his psychiatric report without instructions to do so, was generally incompetent and went “against” him in submissions. He also complained that transcripts of his trial were revised and that words were put in the complainant’s mouth in the s 93A statement. The appellant also submitted that Legal Aid informed him about the medical evidence. He submitted that that medical evidence, in conjunction with where his DNA was found on the complainant, did not suggest penetration. For example, the 1 mm scratch on the fold of the left labia minor could have been caused by the scratching of a fingernail which could have been caused by the complainant herself. While DNA was located on the complainant’s vulva, rectum, underpants and shorts, Legal Aid did not provide the appellant with any other DNA evidence about DNA located in other locations on the complainant.Consideration As the appellant’s file was not able to be located by his previous solicitors, the appellant’s evidence that he did not sign written instructions or a copy of the statement of facts is not contradicted. However, the lack of written instructions or a signed statement of facts does not conclude the question as to the appellant’s understanding as to the nature of the charges to which he pleaded guilty. By his own affidavit evidence, the appellant was told by his initial solicitor that four rape counts and one indecent treatment charge were alleged against him. At that stage, it appears he was not provided with details of how the rapes were alleged to have occurred. The appellant accepted, however, that the solicitor who subsequently took over his case did read to him portions of the complainant’s statements and those of her parents. There is no reason to doubt that the portions of the complainant’s evidence read to him did include those portions constituting the counts alleged against him. That is, that the appellant showed the complainant his pee pee and “put it in [her] mouth” (which constituted count 1), that the appellant “put his pee pee on [her] pee pee” (which constituted count 2), that she “did have cocky in [her] bum” (which constituted count 3), that he put his “finger in [her] pee pee” (which constituted count 4) and that he put “one finger in [her] bum” (which constituted count 5). While the appellant accepted that his first solicitor told him about DNA evidence, no mention was made of an anal swab by his solicitors. However, the appellant was specifically made aware by his barrister in December 2017 that DNA evidence was found in the complainant’s anus and told that one of the counts of rape comprised an allegation that he had penetrated the complainant’s anus. This was different from what the appellant stated he had previously been told and that it so shocked the appellant that he asked his barrister to read the evidence again. In response, he was told by his barrister that the complainant “clearly says” that he penetrated her anus. The appellant was moreover advised by his barrister that, notwithstanding the difficulties with the complainant’s statement, a jury would understand “that rape of the anus was what the complainant was talking about”.[32] By his own evidence, the appellant was appraised that anal rape was clearly alleged by the complainant and was supported by DNA evidence found in the complainant’s anus. In those circumstances, it was abundantly apparent that the barrister had communicated that a count of penile anal rape was charged.[32]Appellant’s affidavit at [36].