R v Potter - [2018] QCA 278

[2018] QCA 278

COURT OF APPEAL

FRASER JA
PHILIPPIDES JA
DAVIS J

CA No 33 of 2018
DC No 434 of 1999

THE QUEEN

POTTER, Craig Geoffrey Applicant

BRISBANE

THURSDAY, 18 OCTOBER 2018

JUDGMENT

FRASER JA: The applicant applies for an extension of time to appeal against his conviction in the District Court on 15 November 1999. On that date, he was convicted on his own plea of guilty of one count of indecent assault. That assault consisted, at least in part, of the applicant penetrating the vagina of the complainant with his finger.

The applicant deposes in an affidavit that he entered a plea of not guilty but changed his plea after his barrister, who was an experienced counsel, advised him that there was a “possibility of imprisonment should I be found guilty at trial”. Consistently with what was said in Meissner v The Queen (1995) 184 CLR 132, a decision such as that does not evidence a miscarriage of justice. The applicant made a free choice to enter his plea after considering his options and the various risks. The applicant goes on to depose:

“I was advised by my barrister that because I was altering my plea due to being under duress of imprisonment, I had the right to return to court at any time to have my case re-heard, and that my guilty plea must be ignored by the court.”

It is inherently improbable that experienced counsel would have given such obviously wrong advice. When an allegation that counsel gave that advice is made in an affidavit, sworn about two decades after the conviction, in an endeavour to have the conviction set aside, the allegation is properly to be characterised as incredible. In an affidavit upon which the Crown seeks to rely, Mr Adam Campbell Guest, a legal practitioner who instructed counsel for the applicant upon his plea, deposes that he did not hear any advice to that effect being given by counsel and did not himself give that advice. The applicant also deposes:

“After changing my plea, I became aware that my lawyers were withholding a vital piece of evidence from me, being the complainant’s claim on non-consent.”

The affidavit does not identify the vital piece of evidence said to have been withheld from the applicant, apart from the uninformative description: “the complainant’s claim on non-consent.”

This part of the applicant’s evidence is too vague to supply material support for his application. Mr Guest deposes that he did not withhold any evidence from the applicant.

To succeed on an appeal against conviction based on a plea of guilty, an appellant must demonstrate that there has been a miscarriage of justice. Mere stress or pressure upon the accused at the time of the plea is not sufficient.

In a case of this character, it is necessary for the appellant to establish that the plea was not a free and unequivocal plea. It is the case, however, that a plea of guilty based on misapprehension of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Potter

Details

AGLC: R v Potter [2018] QCA 278
Case: [2018] QCA 278
Decision Date: 18 OCTOBER 2018

CaseChat Overview and Summary

In the case of R v Potter, the applicant seeks an extension of time to appeal against his conviction in the District Court, where he was found guilty of indecent assault by a plea of guilty. The applicant claims that he was under duress when he changed his plea from not guilty to guilty and that he was given incorrect legal advice by his barrister. The applicant also alleges that vital evidence was withheld from him by his legal team. The legal issues before the court were whether the applicant's plea was a free and unequivocal plea and whether there was a miscarriage of justice. The court held that the applicant's affidavit was vague and did not provide sufficient evidence to support his claims. The court also held that a mere misapprehension of a point of law is not enough to set aside a conviction based on a guilty plea. The court found that the applicant had not demonstrated any exceptional circumstances to warrant an extension of time. The Court of Appeal refused the application for an extension of time to appeal against the conviction. The court held that the applicant had not provided a sufficient explanation for the delay in bringing the appeal, and there was no evidence that a miscarriage of justice had occurred. The court also noted that the applicant's claims were inherently improbable and lacked credibility. The application was refused, and the Court adjourned.

Orders