R v Kenny

[1999] QCA 399

99.399

COURT OF APPEAL

DAVIES JA
McPHERSON JA
AMBROSE J

CA No 246 of 1999

THE QUEEN

v.

ROBERT FRANCIS KENNY  Applicant

BRISBANE

..DATE 17/09/99

JUDGMENT

DAVIES JA:  The applicant seeks an extension of time within which to appeal against a conviction for assault occasioning bodily harm and a sentence of 120 hours community service which was imposed for that offence to which he pleaded guilty on 11 May this year.  The notice of appeal was filed on 16 July, that is more than a month out of time.

The facts upon which the applicant pleaded guilty involved an assault on a railway security officer.  The applicant was intoxicated and was causing a disturbance to other passengers.  Two security officers attempted to placate him.  He refused to leave the train when asked.  He struggled violently at attempts to remove him.  When he was left on the platform he repeatedly tried to push his way back onto the train.  Eventually the complainant escorted him to a seat.  As the complainant walked into the guard box on the train the applicant shoved him hard from behind and dislocated his shoulder. The applicant denied the circumstances of the offence to the police but as I have said pleaded guilty on the basis of those facts.

The applicant does not assert that that plea of guilty was induced in any way by fraud or by any pressure or threat to him and in those circumstances, in my view, fails to satisfy the tests requisite for setting aside a plea of guilty and I refer to the decision of the High Court in Meissner v. The Queen (1994-95) 184 CLR 132. What he says in effect is that there would have been some further evidence which might have assisted him had he obtained it.
That evidence being in the form of a video recording and of some other witnesses who were there at the relevant time.  But he does not even go so far as to say that that evidence does support contentions which he would like to make which was that he did not - although he admits to pushing the security officer - did not cause the security officer to dislocate his shoulder.

His reason for pleading guilty in the end was that if he pleaded not guilty in order to obtain the evidence which he later sought that his bail would be revoked and he would go back to prison, and really it was in those circumstances that he made the election to plead guilty.  As I have already said that is not sufficient to justify a Court in setting aside a guilty plea and there is, therefore, no substance in the appeal against conviction were an extension of time granted and, as I have mentioned, the only basis for the delay was that he was seeking this evidence which may or may not have assisted him.

As to the application for leave to appeal against sentence, in my view, having regard to the facts upon which he pleaded guilty - and that is the basis upon which it must now be considered - a sentence of 120 hours community service was well within the appropriate range for an offence such as this of assault occasioning bodily harm and consequently in my view there would be no substance in an application for leave to appeal against that sentence if an extension of time were granted.  Accordingly, I would refuse the application for extension of time.

McPHERSON JA:  I agree.  A plea of guilty has been said to be the most cogent admission that can be made.  It will not be set aside after it has been made unless some miscarriage of justice can be demonstrated.  There is no miscarriage of justice if the plea of guilty 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 the exercise of a free choice in the interests of the person entering the plea.

There is, the High Court said in Meissner v. The Queen (1995) 184 CLR 132, 141, 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. It therefore does not directly matter in this case that the applicant may not have been guilty of the offence, as he now asserts. The relevance of his guilt or otherwise could be only, or could go only, to the question of whether or not he had been under some form of improper pressure to plead guilty as he did.

There is simply no evidence of any improper pressure of that kind.  He was faced with a choice of whether to plead guilty or not guilty.  He knew what the consequences of a plea in either form was likely to be.  He chose to take one of those courses - namely, to plead guilty - and he has demonstrated nothing that would justify us in extending time to allow him to appeal with a view to setting aside his plea and embarking upon a new trial of this fairly insignificant incident.  That is all I have to say on the subject.

AMBROSE J:  Yes, I agree that the application should be refused.

DAVIES JA:  The application for extension of time is refused.

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