R v O'Connor

[1997] QCA 308

[1997] QCA 308

COURT OF APPEAL

McPHERSON JA
SHEPHERDSON J
WHITE J

CA No 227 of 1997

THE QUEEN

v.

ROBERT JOHN O'CONNOR  Appellant

BRISBANE

DATE 12/8/97

JUDGMENT

WHITE J:  The appellant pleaded guilty to a 13 count indictment which contained five counts of indecent dealing of a child under the age of 14, seven of attempted rape and one indecent assault.

Before pleading guilty to count 1, which was a count of indecent dealing, and then to the balance of the counts on the indictment, Mr Menolotto, who appeared for the appellant, said this to the Court:

"I will be appearing for Mr O'Connor.  If I may mention at the outset, yesterday I exhaustively went through each and every count on the indictment with my client and explained each and every count on the indictment.  He accepts and understands each and every count on the indictment.  He is willing and able to enter a global plea if that be Your Honour's practice."

His Honour then said:

"Mr O'Connor, my associate will read out the first count on the indictment to you and ask you how you plead in relation to that, read out the details of that first count and then he will ask how you plead and then you enter your plea in relation to the first count and then he will ask you how you plead in relation to the other 12 counts on the indictment and you can plead to those other 12 counts in a global sort of way.  You understand that, don't you?"

And His Honour says "yes".  The associate then said to the appellant:

"Robert John O'Connor you stand charged by that name pursuant to count 1 that on a date unknown between the 21st February 1973 and the 21st day of December 1973 at Gladstone in the State of Queensland you unlawfully and indecently dealt with one T a girl under the age of 14 years."

To which the accused replied "guilty".  The associate then said:

"You stand charged with a further 12 counts.  How say you to these further 12 counts, are you guilty or not guilty?"

And the accused replied "guilty".

Now the appellant who appears before us this afternoon on his own behalf, he having previously had a solicitor who acted for him but who apparently gave him some advice that there would be not a lot of prospect of success in his appeal has, as his grounds of appeal the following:

"I wish to appeal conviction on the ground that I do not remember committing any such offences and plead guilty on advice from my solicitor that I would not receive a term of imprisonment.  Further, I am informed that a prosecution witness wishes to give evidence on my behalf, which I did not know at the time of plea, that the verdict was unsafe and unsatisfactory."

It should also be mentioned that the appellant appears before the Court today without any Record but he is unable to read or to write.  Whilst he gives some indication that he is not sure what he wishes to do, the impression I have is that the matter is to proceed today.

The appellant had denied the allegations that were put to him in an interview but in fact he had admitted to a social worker in approximately 1988 when attempting to assist the complainant in her custody dispute with her then husband that he had engaged in a systematic sexual abuse of the complainant.

Now it must be said that this was put before the Court below to indicate that he had, to some extent, made amends for the course of conduct against the complainant in that he was prepared to make those admissions in order to assist her in another forum.

It was also put before the Court that the appellant had made some general admissions implicating himself in these offences in a taped conversation between the complainant and himself.  He now says before this Court that he cannot see how that taped conversation does so.  During the submissions on behalf of the appellant at sentence his counsel said this:

"Largely, Mr O'Connor does not wish to dispute the version put up by the complainant.  I say `largely'.  He has very poor recollection of any of the episodes.  He has quite deliberately tried to block it from his memory.  Only one aspect he vigorously disputes and that is it won't present any problems for the sentence, I would submit, that that is that he denies ever inserting any pen in the girl's vagina.  Now that was said to be it is not included as a count on the indictment and for that reason it should not present a problem because it was said to be the preliminary to count 4, which is an attempt of rape, and certainly he does not dispute that.  By his plea he does not dispute that on numerous occasions during the periods of time in question there were these attempts of penile penetration so it ought not.  I am just putting his version on the record."

The appellant before us agrees that he was present in Court when these things were said on his behalf by his counsel.  It would appear to be, from the grounds of appeal, that it is, in a sense, the fact that he has had an actual custodial term imposed upon him which has caused him to be aggrieved.

It is clear in the submissions that were put by his counsel to the sentencing Judge that he was well aware that he was facing a prison sentence and that appears at page 15 of the record where his counsel said:

"I appreciate that at the end of the sentence he is not going to be able to leave."

And that was in the course of a brief adjournment while His Honour took another verdict and bail was being sought.  Again, Mr Menolotto's submissions at page 21 of the record, he also referred to submissions about what he will do when he leaves prison.  He says:

"The only other thing I can say is that he is aware that he is going to have to pay a heavy price and he is going to be going to gaol.  He is aware of that."

And further comments were made in respect of what he expected to do afterwards.

It should also be mentioned that at no time did his counsel make any submissions that he should not actually have to serve some part of that sentence in prison.

The grounds of appeal also include a reference to a prosecution witness who contacted him and would give evidence on his behalf.  The appellant has said that that was one Ann Williams who suggested that the complainant had been engaged in blackmail in respect of her complaint but there seems to be nothing further that this Court could take into account in respect of that matter.

The whole of the submissions made on behalf of the appellant below was of a man ready to pay his debt by an actual term of imprisonment and hoping to return to his wife who was supporting him and who was present in Court during these submissions which were made on her husband's behalf.

Accordingly, in my view, it seems that there is nothing about the material that was presented before the learned sentencing Judge and which has been said by the appellant today which would suggest that the plea of guilty was not one that was made in a full understanding of the basis upon which the plea was made and that he was not under any particular pressure or misapprehension as to what the consequences might be.

I should say finally there is a ground of appeal that the verdict was unsafe and unsatisfactory but since he pleaded to all of the counts on the indictment I think that that has probably been dealt with adequately by the remarks that I have made above.  Accordingly I would dismiss the appeal.

McPHERSON JA:  Yes, I agree.  The appeal is really unsustainable because apart from the plea of guilty entered at the hearing there were tape recorded admissions in a conversation with the social worker and in the telephone conversation with the complainant that really made it impossible for any plea other than guilty to be entered in a case like this.  I consequently concur in the proposed order that the appeal be dismissed.

SHEPHERDSON J:  I agree with the order proposed by Justice White and with her reasons and the reasons of the learned presiding Judge.

McPHERSON JA:  The order is that the appeal is dismissed.