R v OCA

Case [2024] QCA 105

SUPREME COURT OF QUEENSLAND

CITATION:

R v OCA [2024] QCA 105

PARTIES:

R
v
OCA
(applicant)

FILE NO/S:

CA No 249 of 2022
DC No 2593 of 2018
DC No 2594 of 2018
DC No 2595 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction & Sentence)

ORIGINATING COURT:

District Court at Bundaberg (Convictions) and Brisbane (Sentence) – Dates of Conviction: 17 October 2018 (Clare SC DCJ) and 15 November 2018 (McGinness DCJ); Date of Sentence: 14 December 2018 (Richards DCJ)

DELIVERED ON:

4 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2024

JUDGES:

Mullins P, Dalton JA and Kelly J

ORDERS:

1.   Application for leave to adduce the report of Associate Professor Michael Robertson and the applicant’s affidavits filed 15 November 2022, 22 December 2023 and 31 January and 27 February 2024 granted.

2.    Application for extension for time to appeal against conviction and sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to three counts on the first indictment of grooming a child under 16, involving a child in making child exploitation material and possessing child exploitation material and five counts on the second indictment of four counts of failure to comply with reporting conditions and one count of giving false or misleading information – where the applicant pleaded guilty about four years prior to filing his application for extension of time to appeal against his conviction and sentence – where the applicant is seeking to appeal against the convictions on his pleas of guilty on both indictments – where the applicant’s explanation for pleading guilty and the delay in applying for leave to appeal was that, leading up to the guilty pleas and throughout the time for appeal, the applicant was subject to traumatic events whilst in custody that prevented him from applying his mind to the question of whether he should plead guilty and then whether he should appeal – where the applicant relied on a psychiatric assessment conducted two years after he pleaded guilty to the first indictment that was prepared for the purpose of his civil claim against Corrective Services for the abuse he suffered while on remand for the subject offences – whether there was a satisfactory explanation for the delay in filing the notice of appeal – whether there was evidence directly relevant to whether the guilty pleas were free and voluntary – whether the appeal was viable – whether it was in the interests of justice to grant the extension

Evidence Act 1977 (Qld), s 132C

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited
R v Burman[2023] QCA 245, cited
R v Gerhardt (2019) 3 QR 48; [2019] QCA 283, cited
R v Wade [2012] 2 Qd R 31; [2011] QCA 289, cited

COUNSEL:

The applicant appeared on his own behalf
S L Dennis for the respondent

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Details
AGLC
R v OCA [2024] QCA 105
Case
[2024] QCA 105
Decision Date

CaseChat Overview and Summary

The case of R v OCA involved an appeal against the refusal of the Queensland Court of Appeal to grant an extension of time to appeal against the applicant's conviction and sentence. The applicant had pleaded guilty to multiple counts, including grooming a child under 16, involving a child in making child exploitation material, possessing child exploitation material, and failure to comply with reporting conditions. The applicant sought to appeal against his convictions on his pleas of guilty, claiming that traumatic events while in custody prevented him from properly considering whether to plead guilty and whether to appeal. He relied on a psychiatric assessment conducted two years after pleading guilty to support his application.

The legal issues in this case centred on whether there was a satisfactory explanation for the delay in filing the notice of appeal, whether there was evidence directly relevant to whether the guilty pleas were free and voluntary, whether the appeal was viable, and whether it was in the interests of justice to grant the extension. The court had to consider the lengthy delay in the applicant’s appeal, his pursuit of a civil claim during that time, and the difficulty in appealing convictions based on guilty pleas. The case referenced previous judicial discussions on the challenges of appealing after entering guilty pleas and the need for strong evidence to show that the pleas were not free and voluntary.

The court concluded that the application for an extension of time to appeal should be refused. The reasons included the significant delay in making the extension application, particularly as the applicant was pursuing a civil claim during this period. The court found no satisfactory explanation for the delay and no direct evidence that the guilty pleas were not free and voluntary. Additionally, the court determined that the material did not support a conclusion that the applicant would have a viable appeal against his conviction. Consequently, the court held that it was not in the interests of justice to grant the extension.

The court granted the application for leave to adduce the report of Associate Professor Michael Robertson and the applicant’s affidavits filed on various dates. However, it refused the application for an extension for time to appeal against conviction and sentence. The decision was supported by the reasoning that the lengthy delay, lack of relevant evidence, and absence of a viable appeal warranted the refusal of the extension application.

Orders

Orders of the court

1. Application for leave to adduce the report of Associate Professor Michael Robertson and the applicant’s affidavits filed 15 November 2022, 22 December 2023 and 31 January and 27 February 2024 granted.

2. Application for extension for time to appeal against conviction and sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The explanation given by the applicant for the delay in applying for leave to appeal is that throughout the period leading up to the sentencing, the time for appeal and for some time after, the applicant was subject to traumatic events whilst in custody at the Maryborough Correctional Centre and those circumstances prevented him from applying his mind to the question of the prospects of a not guilty plea and the question of an appeal. The applicant relies on the information he imparted to Professor Robertson which is recorded in the report for the detail of the circumstances that precluded his giving proper consideration of whether he should plead guilty to the subject offences. He asserts that he pleaded guilty to escape the abuse at the Maryborough Correctional Centre, as he knew that he would be transferred to another prison to do a sex offenders treatment program. The applicant acknowledges that he did not pursue his extension for leave to appeal at the earlier time when he was able to give instructions for a civil claim for damages for personal injuries against Corrective Services. He explains that he was pursuing the civil claim to receive the treatment he needed and that he was represented by lawyers in the civil claim which was very different to being self-represented in pursuing a criminal appeal against convictions out of time. The applicant’s rationalisation for why he proceeded with his civil claim rather than the extension application does not provide a satisfactory reason for the delay. He acknowledges in his submissions that there is a direct link between his conviction on the charges on the first indictment to his subsequent placement on a DPSOA order. There was a lengthy delay by the applicant measured in time before he pursued the extension application but also by reference to events in that the application for extension was filed after the applicant was placed on the DPSOA order.Is there evidence that the guilty pleas were not free and voluntary? Even apart from the consideration of the lengthy delay in seeking to appeal, the applicant’s application must address that he is now seeking to appeal convictions that were entered on pleas of guilty. See the discussion by Bowskill CJ (with whom Flanagan JA and Burns J agreed) in R v Burman [2023] QCA 245 at [6]-[9] where reference is made to the authorities that emphasise the difficulty for a person convicted on a guilty plea to go behind the guilty plea to show the conviction resulted from a miscarriage of justice. See R v Wade [2012] 2 Qd R 31 at [51] and [62]. As was explained in Meissner v The Queen (1995) 184 CLR 132 at 141 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.” (footnote omitted)

Decision

Reasons for decision

Ground 5 is misconceived. The applicant asserts that the investigating police officer failed to investigate to whom the “underj123” Snapchat account belonged. The prosecution’s obligation of disclosure does not extend to undertaking further investigations when the agreed statement of facts was able to be based on X’s evidence.Conclusion It is not in the interests of justice for the applicant to succeed in his application for extension for time to appeal against conviction and sentence, because of the length of the delay in making the extension application (during which time the applicant pursued a civil claim for damages against Corrective Services), the lack of evidence directly relevant to whether the guilty pleas to the subject offences were free and voluntary, and that the material does not support a conclusion that the applicant would have a viable appeal against conviction.Orders It follows that the orders which should be made are:1.Application for leave to adduce the report of Associate Professor Michael Robertson and the applicant’s affidavits filed 15 November 2022, 22 December 2023 and 31 January and 27 February 2024 granted.2.Application for extension for time to appeal against conviction and sentence refused. DALTON JA: I agree with the orders proposed by Mullins P and with her reasons. KELLY J: I agree with the reasons and orders proposed by the President.

Ratio Decidendi

Legal Principle Established

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