R v Mesken

[2000] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mesken [2000] QCA 139

PARTIES:

R
v
MESKEN, Steven Leonard
(applicant)

FILE NO/S:

CA No 374 of 1999
DC No 2911 of 1996

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sent and Conv)

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

28 April 2000

DELIVERED AT:

Brisbane

HEARING DATES:

22 February 2000, 7 April 2000

JUDGES:

Davies and Thomas JJA, Wilson J
Judgment of the Court

ORDERS:

Application for extension of time refused
Application for leave to appeal against sentence and conviction refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – application for extension of time in which to appeal – application for leave to appeal against conviction and sentence – whether to allow plea of guilty to be withdrawn – test – test whether miscarriage of justice – DNA evidence not relied on by Crown – forensic report affording some opening to submit jury should have reasonable doubt as to guilt – other compelling evidence of identification

Boag (1994) 73 A Crim R 35, applied
Meissner v R (1995) 184 CLR 132, applied

COUNSEL:

The appellant appeared on his own behalf
M J Byrne QC for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  These are applications for an extension of time in which to appeal and for leave to appeal against conviction and sentence.  The applicant prepared the applications and supporting material and appeared before this Court without legal representation.

1. The applicant was charged with a number of offences allegedly committed on 6 July 1996 – two counts of rape, seven counts of indecent assault, one count of deprivation of liberty and one count of disabling with intent to commit an indictable offence.  On 29 November 1996 he appeared before a District Court judge sitting in Gladstone.  He was represented by a barrister (Mr O’Driscoll) and a solicitor (Mr McHenry).  He was convicted of these offences on his own pleas of guilty and received sentences of eight years on the rape charges, eight years on one of the indecent assault charges and five years on each of the other indecent assault charges, twelve months on the charge of deprivation of liberty and eight years on the charge of disabling with intent.  The sentences were ordered to be served concurrently.

1. The applications were filed on 10 November 1999, almost three years after conviction.  In each the following grounds were relied upon –

“At the time I pleaded guilty to the above Counts, I had been advised by my Solicitor on the 26^th November 1996 that DNA evidence provided in the case positively identified me as the assailant. I have now recently found out that the Forensic Evidence from the John Tong [sic] Centre is contrary to what my Solicitor advised me.”

1. The evidence and the submissions of the applicant all went to the question of whether the convictions ought to be set aside.  He made no submissions with respect to the sentences.

1. Pleas of guilty may be permitted to be withdrawn where letting them stand produces a miscarriage of justice: Meissner v R (1995) 184 CLR 132; Boag (1994) 73 A Crim R 35. In Meissner Brennan, Toohey and McHugh JJ said at 141 –

“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.”
Their Honours also said at 143 -
“Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, 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.”
Dawson J said at 157 –
“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt.  He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.  The entry of a plea of guilty upon grounds such as these 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.  Ordinarily that will only be 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. But the  accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.  For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.”

1. The complainant was a 19 year old woman who had been resting in the back of her boyfriend’s car in the car park of the Boyne/Tannum Country Club where she had been drinking.  She was attacked in the car and subjected to lengthy verbal and sexual abuse including being forced to perform oral sex on her attacker a number of times, having oral sex performed on her, having a finger inserted into her anal passage and vagina and being raped anally and vaginally.

1. The applicant has no memory of the incident.  The complainant’s boyfriend and his cousin dragged him from the car and gave him what the sentencing judge described as a good hiding.  He was rendered unconscious and hospitalised for two and a half weeks after the incident.

1. In his submissions to the sentencing judge Mr O’Driscoll said –

“The weight of the Crown case is obviously overwhelming and even in response to the very weight and the nature of that evidence in conference that was placed before Mesken it was still difficult for him to accept it and right up until last week, your Honour, there was the vain hope that somehow or other magically that forensic evidence would have exculpated him and his conscience could rest, but that obviously wasn’t the case.  The forensics didn’t assist nor detract from the Crown case in any shape or form, I mean, he has accepted that he is the person responsible for it.”

1. Shortly after the incident in question various samples taken from the persons of the applicant and the complainant and the clothing each was wearing at the time were submitted to the John Tonge Centre for forensic testing.  The testing was not carried out in time for the committal which proceeded as a hand up committal.  The report of the forensic scientist who performed the testing is dated 21 November 1996. The applicant did not see a copy of it until October 1999, when someone from Legal Aid Queensland obtained one for him pursuant to the Freedom of Information Act 1992.

1. Testing of vulval, vaginal, perianal and rectal swabs and smears taken from the complainant showed no seminal fluid. Blood was present in a tampon she had been wearing, but no seminal fluid was found. The complainant’s clothing (bra, panties, skivvy and jeans and belt) were not damaged; no seminal fluid was found on any of these and the only blood found, which was on the jeans, was consistent with her own. Her boyfriend’s jumper had been in the car. The assailant had put it over her face, and she had put it on afterwards when people came to the car. It had a small tear in the left sleeve; no seminal fluid was found on it; smears of blood on the outside front were from a male person other than the applicant; and a number of head hairs located on it were visually dissimilar to those of the applicant.

1. A few stains of blood were found on the applicant’s jeans on the outside front crotch region; these were analysed as being from a male person other than him and different from the blood on the jumper. His T-shirt was damaged in various respects; it contained blood consistent with his own. No blood was seen on his underpants which were undamaged.

1. In support of the applications the applicant relied on his own affidavit sworn on 4 November 1999, a letter written by him and witnessed by a Justice of the Peace (filed in this Court on 10 November 1999), his own signed statement dated 10 February 2000, and a further handwritten statement by him witnessed by a Justice of the Peace and dated 7 March 2000. In addition he called his mother Vicky Patricia Richards to give oral evidence. The Crown relied on two affidavits by the solicitor David Allan McHenry (sworn on 11 February 2000 and 17 March 2000 respectively) and an affidavit by the barrister Gerard Colin O’Driscoll (sworn on 5 April 2000).  Both Mr McHenry and Mr O’Driscoll were cross-examined.

1. In his affidavit sworn on 4 November 1999 the applicant said that at the time of his Court case he had been living in Proserpine and that he travelled to Gladstone on the afternoon of Friday 26 November 1996. In fact, 26 November 1996 was a Tuesday. He went on -

“When I consulted my Solicitor upon my arrival in Gladstone, he advised me that the DNA evidence positively implicated me in the commission of the offences. He advised that I would have no prospects of successfully defending the charges and in the context of his advices, I decided I would enter a plea of guilty.”

1. In the letter filed in this Court on 10 November 1999 he reasserted that his solicitor had told him that the DNA samples were positive.

1. In his signed statement dated 10 February 2000 he alleged that the report had been available to his solicitor who had not disclosed it to him and who had told him that he had no chance of defending the charges.

1. In his statement made on 7 March 2000 he said that he and his mother had been at a conference with Mr McHenry and Mr O’Driscoll in Mr McHenry’s office “on the Friday afternoon.” Mr O’Driscoll left and his mother went to the toilet. Mr McHenry went into his office and took a phone call; on his return he told the applicant that the DNA was positive. His mother returned to the room, and they proceeded to discuss a power of attorney which he signed that afternoon. The next day there was another conference. He asked again to see the DNA report, but was told that it was not available. The solicitor advised him to plead guilty. He was told that he had signed the power of attorney in the wrong place, and that he would have to sign it again on the Monday morning before going to Court. Both the barrister and the solicitor advised him to plead guilty. He and his mother went out for a cup of coffee, and when they returned he instructed his legal representatives that he would plead guilty.

1. Ms Richards was adamant that the applicant was told in conference in Mr McHenry’s office, in her presence, that the DNA evidence was positive. She said that at no stage did she leave the room so that the applicant was left alone with Mr McHenry or Mr O’Driscoll. In re-examination by the applicant it was put to her that she may have left the room after the power of attorney was signed, and she conceded that she might have. Importantly what was put to her in re-examination was different from what the applicant said in his statement of 7 March 2000. There he seemed to be referring to the same conference, but to place her leaving the room before the discussion of and signing of the power of attorney.

1. The references to various days of the week are a little curious.  The proceedings before the sentencing judge took place on Friday 29 November 1996. On the other hand Mr O’Driscoll said that it was his practice to hold conferences on Saturday mornings. However, little turns on these discrepancies. What are important are the inconsistencies in the applicant’s versions, and the inconsistencies between his versions and his mother’s.

1. Mr McHenry and Mr O’Driscoll each said that he did not see the report from the John Tonge Centre before the applicant was sentenced. It was common ground that the applicant and his mother asked them whether DNA or other forensic evidence was available. The evidence of the barrister and solicitor was to the effect that Mr McHenry had instructed Mr O’Driscoll to make inquiries of the prosecutor. They both denied ever telling the applicant that there was DNA evidence against him which was positive. Mr O’Driscoll said he told the applicant that he had been informed by the prosecutor that the Crown did not intend to rely on forensic evidence. There was some equivocation in his evidence as to whether he told the applicant that the testing had not been performed. He told this Court that it was his understanding that it had not been and would not be carried out. However the more contemporaneous statement he made to the Court in 1996 soon after the conference (which is set out in para [8] above) would seem to be a more reliable source.  His assertion that “the forensics didn’t assist nor detract from the Crown case in any shape or form” suggests that he had at least received advice to that effect from the Crown prosecutor, although it is clear from the evidence of Mr McHenry and Mr O’Driscoll that they had not been provided with a copy of it.  It is reasonable to think that what was said in conference was similar to what counsel informed the Court, and that he would not have said that to the Court unless he believed it to be true.  He had a vague recollection of telling the applicant that he could wait for the DNA report if he wished, but that it would be very difficult for it to change the fact that he was the person who was dragged out of the car.

1. We accept the evidence of  Mr McHenry and Mr O’Driscoll that neither saw a copy of the report, and that neither told him that the DNA evidence was positive.

1. There are some features of the forensic report which favour the applicant. No seminal fluid, saliva, blood, hair or any other trace of the applicant was found in any of the samples taken from the complainant or in her clothing. However, her evidence that he had been unable to maintain a penile erection is consistent with the absence of traces of seminal fluid. The jumper contained blood from a male other than the applicant and hairs dissimilar to those of the applicant, but it was her boyfriend’s jumper.  Her clothing was undamaged, which is a little surprising given the circumstances in which it was forcibly removed. She was menstruating at the time, and yet there was no trace of her blood in the samples taken from the applicant.

1. The applicant’s clothing was damaged; this is consistent with the severe beating he sustained at the hands of the complainant’s boyfriend and others.  He submitted that evidence that he was seen in the gutter unconscious but fully clothed was inconsistent with his having attacked the complainant as alleged. However, on close examination the evidence did not go so far. The complainant’s boyfriend said that when he saw the applicant in the car he had his long pants part way down. The complainant said that when she got out of the car he was face down on the ground; he was not wearing a shirt and his pants were still undone. In a supplementary statement she said that he could have been wearing a shirt. The car park area where he was left was dark. A witness who saw him there after the beating, Jodi Donohue, needed a torch to check on his condition. She said that he was lying in the gutter and that he had a pair of jeans and a green T-shirt on; she did not say whether the jeans were undone. Another witness who saw him in the car park, Rene Porteous, said she believed he was clothed.

1. The applicant has no memory of the incident. Before it occurred, he had been drinking and consuming marijuana and possibly other drugs. After it happened he received a severe beating, and he was rendered unconscious; on his arrival at the Gladstone Hospital he had a Glasgow Coma Scale reading of 12 - 14 on 15. At the time of his conviction he was still under medication. His mother could not accept that he could have committed the offences, and considered that the language he was alleged to have used to the complainant was quite out of character. 

1. On its own the forensic evidence did not advance the Crown case, and it may have contained some opening to the defence to submit to the jury that they should be left with a reasonable doubt as to the applicant’s guilt. However, there was other compelling evidence against him. The complainant’s boyfriend and his cousin dragged him from the car where she was attacked, and there were other witnesses who identified him in the car park.  The evidence that proved him to have been the person pulled from the vehicle in which the complainant was being attacked came from distinct sources, including the bus driver.  There is no viable theory of conspiracy or concoction or any hypothesis consistent with the applicant’s innocence.  Indeed none was advanced in argument other than his own and his mother’s disbelief that he could have been the offender.

1. Although some concern is raised by the probability that the applicant was informed that the forensic report was neutral when in fact it might have been of some slight use to the defence, such a concern pales into insignificance against the strength of the case against the applicant.  Counsel’s advice to him remained valid.  It may be noted that the forensic report did not tend to cast suspicion upon anyone else, and the main use to which it could have been put for defence purposes was to suggest that it was surprising that no relevant traces were found on the applicant.  In these circumstances the tests applicable to allowing a conviction and plea of guilty to be set aside are not satisfied.

1. In all the circumstances the applicant has not satisfied us that there is a risk of miscarriage of justice if the convictions are allowed to stand. The applications should be dismissed.