R v. O'Brien

[2007] QCA 415

SUPREME COURT OF QUEENSLAND

CITATION:	R v O’Brien [2007] QCA 415
PARTIES:	R v O’BRIEN, Alan Terry (applicant)
FILE NO/S:	CA No 135 of 2007 DC No 420 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	Orders delivered ex tempore on 3 October 2007 Reasons delivered on 23 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	3 October 2007
JUDGES:	Jerrard and Keane JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the applicant pleaded guilty to one count of burglary with circumstances of aggravation and one count of rape – where the applicant was sentenced to eight years imprisonment on the count of burglary and 14 years imprisonment on the count of rape – where the applicant contended that he was misled by legal advice into pleading guilty – where the applicant believed that there has been a mix up in the DNA samples – whether application should be granted
COUNSEL:	The applicant appeared on his own behalf S Bain for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

1. JERRARD JA:  On 3 October 2007 the applicant’s application for an extension of time was heard by this Court. This Court pronounced orders on 3 October 2007 and undertook to give reasons at a later date. These are the reasons for the orders pronounced on 3 October 2007.

1. On 12 February 2007 the applicant pleaded guilty in the Ipswich District Court to one count of burglary of the dwelling house of Ruby Jesberg, with circumstances of aggravation including the use of actual violence and when being armed, and one count of rape of Ruby Jesberg, the offences allegedly being committed on 6 August 1999.  On 31 May 2007 Mr O’Brien was sentenced to eight years imprisonment on the count of burglary and 14 years imprisonment on the count of rape.  He was also sentenced to two years imprisonment on a count of stealing, to which he pleaded guilty on 31 May 2007.  Mr O’Brien asks for an extension of time in which to challenge his convictions on the basis of his pleas of guilty.

1. Mr O’Brien’s application for an extension of time, filed on 19 June 2007, asserts that he was led to believe that to appeal, he had to wait until all matters had been dealt with by the courts, and that was why he did not lodge any application until after 31 May 2007.  He also asserted in that document that he was not given the chance by his lawyers to introduce evidence on his own behalf relating to the offences, of which he was innocent.  In his Notice of Appeal he contended that he was misled by legal advice into pleading guilty, and believed that there has been a mix up in the DNA samples.  He contended that he had always maintained his innocence, and had believed that this would be proven before a jury, but was advised to plead guilty.  The assertions in those applications are consistent with what he has told others, namely that he has no recollection of having committed the offences, although he pleaded guilty.  His position seems to be that he has no personal recollection of whether he did or did not burgle the complainant’s home and rape her.

1. Counsel for the Crown informed the court on 12 February 2007 that the pleas of guilty were entered “on the basis of the complainant’s statement”, she now being deceased.  The judge who imposed the sentence on 31 May 2007 recorded, in the sentencing remarks, the judge’s acceptance that Mr O’Brien had no actual memory of having committed the offences, and that he had pleaded guilty on the basis of DNA evidence, which had been subjected to an independent test by the defence, and which placed Mr O’Brien as the person who committed the offence.

1. That DNA evidence is now the basis for the application for an extension of time within which to challenge the convictions.  The complainant described how she woke in her bed in the early hours of Friday 6 August 1999 and found a man standing beside the bed, armed with a knife.  That man punched and otherwise assaulted her, and anally raped her more than once.  He also forced her to perform fellatio on him.  He lit two cigarettes during the time he was there.  Eventually he left, after threatening to return if she called the police, and apparently taking some of her money with him.  When medically examined, she had injuries consistent with anal rape and with the other physical assaults she described. 

1. The respondent Director supplied this Court with a copy of a Statutory Declaration by a Sharon Johnstone, a supervising forensic scientist in the forensic biology section of the Queensland Health Pathology and Scientific Services.  Her declaration records that on 6 August 1999 the various items listed on receipt No A 8924 were received at a laboratory, and registered under the laboratory No “F 20087”.  On 12 August 1999 a reference sample F 20114-1, for a Lionel Charles Huntly, was received.  It was given receipt No A 8943.  On 9 November 2005 a reference cell sample, 216072174, for Mr O’Brien, was received.  No receipt number is described.

1. Ms Johnstone reported that two cigarette butts, F 20087-6 and F 20087-7, (presumably, the two cigarette butts listed on receipt A 8924) had revealed mixed DNA profiles consistent with at least two contributors.  If it was assumed that there were two people contributing to the mixture, then it was 950 million times more likely to find this mixed DNA profile if it came from the complainant Ruby Jesberg and from Mr O’Brien, than from the complainant and an unknown person.  That seems to put Mr O’Brien in the picture, as present at the complainant’s home, and smoking cigarettes there.  Regarding some underpants, labelled F 20087-11, described as found in the doorway of the bathroom, those had red brown staining in the rear near the waistband, and at the front crotch.  A very small number of spermatozoa were observed on slides prepared from those stains on the inside of the underpants.  That inside crotch sample resulted in a mixed DNA profile from at least two individuals, of which the major component was consistent with the DNA profile obtained from the complainant’s reference sample.  Mr O’Brien and Mr Huntly could be excluded from contributing to the minor component.  A second Statutory Declaration from Sharon Johnstone, signed on 3 November 2006, recorded that on 22 August 2006 a reference sample numbered 216061769 from a Mr Graham John Sartin was received, and the remaining DNA components on the underpants (F 20087-11) matched the corresponding DNA components found in the DNA profile obtained from the reference sample for Mr Sartin.  The complainant’s statement had at all times described only one male intruder, and material submitted later by the DPP explained that Mr Sartin was the complainant’s partner.  It did not explain why a DNA sample of Mr Hartley was examined.   

1. The examination of the complainant’s night dress, labelled F 20087-12, revealed some 10 stains in the lower back area, of which six tested positive for seminal fluid.  Spermatozoa were observed on slides prepared from five of those, and two areas of staining were selected for DNA analysis.  That resulted in a DNA profile the same as the DNA profile obtained from the reference sample for Mr O’Brien.  The relative frequency of that DNA profile in the population was about one in 530 billion people.

1. There was, accordingly, a positive DNA identification of Mr O’Brien as contributing spermatozoa to the complainant’s night dress, and DNA to the cigarette butts, and a positive exclusion of Mr O’Brien as the person contributing part of the component DNA in the complainant’s underpants.  He seems to have been identified by that evidence as present, smoking, and ejaculating, all those being what the complainant said the rapist did.    

1. On 14 November 2006 a report was received from a Carol Mayne of DNA Evidence Pty Ltd, apparently prepared for a Mr Rose of the Aboriginal and Torres Strait Islander Legal Service Ltd.   Carol Mayne reported that the document recording the comparison of the analysis of the night dress sample referred to a sample No 29882, and there was no documentation in the case record or file which referred to that sample number as belonging to the night dress, which had sample No F 20087-12-4.  Further, the sample sheets did not record sample No 29822 as being analysed, but instead a sample No 26318.  Carole Mayne considered the discrepancies might be explicable on the basis of a printing error, but the appeal record so far contains no explanation for the discrepancy.  It raises the possibility that it was not the complainant’s nightie which had Mr O’Brien’s DNA on it, but some other material.  That other thing could be unrelated to the offences against Ruby Jesberg.

1. Mr O’Brien has a very long criminal record, and has not applied for bail.  In January 1999 he was sentenced to four months imprisonment, and is not recorded as being in custody in August of 1999.  He was convicted, on 1 December 1999, of an offence of vagrancy and a breach of a Domestic Violence Restraining Order, committed on 9 October 1999, so he appears to have been at large in the latter part of 1999.  Ms Bain, for the DPP, read an affidavit from Michael Kelly, a solicitor in Legal Aid Queensland, annexing handwritten instructions signed by Mr O’Brien on 18 May 2007.  Those strongly suggest Mr O’Brien knew the effect and consequences of pleading guilty, and chose to do that, after being re-assured as to the strength of the DNA evidence.  Those written instructions contradict his criticisms made now of his legal advisers when he pleaded.  Even so, the material before this Court does not explain the labelling discrepancy identified by Carol Mayne.  That should be explained, if the DNA comparison of Mr O’Brien’s DNA and the complainant’s nightie is to be relied on at all.  It is not clear that the prosecution did rely on the DNA comparison with the cigarette butts.

1. Counsel for the respondent, Ms Bain, conceded it was difficult to determine on that material before this Court whether or not Mr O’Brien’s assertions of innocence had any substance.  She did not oppose the application for an extension of time, to clarify the information before the court, and to allow the parties to obtain affidavits from relevant people, as well as to obtain the full transcript of the submissions made at the time of sentence.  The Court therefore granted the application for an extension of time to appeal against the three convictions, and undertook to publish reasons later.

1. I strongly recommend Mr O’Brien be given legal aid for the preparation of that appeal, and on the appeal, despite his quite unfair criticisms of the advice he accepted when pleading guilty.  I recommend that a copy of these reasons be forwarded to Legal Aid Queensland.

1. KEANE JA

   :  I agree with the reasons of Jerrard JA for the orders made on

   
   

   3 October 2007.

1. JONES J: I have read the reasons of Jerrard JA. I agree with his reasons and the orders he prepared earlier.