Ryll v The Queen - [2001] WASCA 185

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: RYLL -v- THE QUEEN [2001] WASCA 185

CORAM: MALCOLM CJ
ANDERSON J
STEYTLER J

HEARD: 14 MARCH 2001

DELIVERED : 20 JUNE 2001

FILE NO/S: CCA 236 of 2000

BETWEEN: DEREK EASTWOOD RYLL
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal and new trial - Application for an extension of time to apply for leave to appeal against conviction - Application 17-1/2 years out of time - Need for exceptional circumstances or demonstration of substantial miscarriage of justice - Allegations of fabrication and non-disclosure of evidence by police - Claim that plea of guilty entered to gain tactical advantage and prevent use of fabricated similar fact evidence untenable

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Applicant: In person
Respondent: Mr R E Cock QC

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cabassi v Vila (1940) 64 CLR 130
Gavan v The Queen (1992) 6 WAR 195
Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996
Hip Foong Hong v Neotia & Co [1918] AC 888
Jenson (1991) 52 A Crim R 279
Lim v Bateman [1999] WASCA 305
Nuttall v The Queen, unreported; FCt SCt of WA; Library No 920090; 26 February 1992
Ryll v The Queen, unreported; CCA SCt of WA; CCA No 31 of 1983; 17 August 1983

Case(s) also cited:

R v Murphy [1965] VR 187

MALCOLM CJ: This is an application for an extension of time within which to make an application for leave to appeal against conviction. The applicant was unrepresented. The application is unusual in that it relates to the applicant's conviction in the Supreme Court on 21 February 1983 on his plea of guilty to one count of breaking and entering a dwelling house in the night‑time with intent to commit an offence therein (count 1 on the indictment), one count of breaking and entering a dwelling house with intent to commit an offence therein (count 6 on the indictment), one count of having carnal knowledge against the order of nature (count 7 on the indictment) and one count of rape (count 8 on the indictment).
On 23 February 1983 the applicant was convicted by majority verdict of a jury of one count of breaking and entering a dwelling house in the night‑time with intent to commit an offence therein (count 2 on the indictment), one count of deprivation of liberty (count 3 on the indictment), one count of rape (count 4 on the indictment) and one count of stealing with violence (count 5 on the indictment).
On 24 March 1983 the applicant was sentenced to an aggregate term of imprisonment for 13 years with an order that he not be considered for parole until he had served a minimum of 6 years and 6 months. An appeal by the applicant against his convictions on counts 2, 3, 4 and 5 on the indictment was unsuccessful: Ryll v The Queen, unreported; CCA SCt of WA; CCA No 31 of 1983; 17 August 1983.
Counts 1, 6, 7 and 8 on the indictment to which the applicant pleaded guilty concerned the complainant who I shall refer to in these reasons as "H". It is in respect of the convictions on his own plea of guilty that the applicant now seeks an extension of time within which to make an application for leave to appeal against those convictions.
The application for an extension of time was made some 17 and a half years after the time for making an application for leave to appeal expired. Because the length of the delay is extreme, the Court requires exceptional circumstances to be established before an extension of time will be granted, unless, having regard to the proposed grounds of the application for leave to appeal, it can be shown that there will have been a substantial miscarriage of justice if an extension is not granted: Jenson (1991) 52 A Crim R 279 at 280 per Malcolm CJ; and Gavan v The Queen (1992) 6 WAR 195 at 198 per Malcolm CJ; at 201 - 203 per Seaman J; and at 219 per Wallwork J.
The grounds upon which the applicant seeks an extension of time are:
"That the tainted evidence only became known to me just before my release from prison. Upon my release, I took the evidence to internal affairs, the person I spoke to there did not identify himself. He informed me that things happened when I got arrested and his advise [sic] to me was do nothing. As the police officers that were involved are now running the Police Department and enjoy the freedom that you have now. I now know the officer in charge is now retired which diminishes my fear of him."
The precise date upon which the applicant was released from prison does not appear, but it must have been no later than in the second half of 1989. There is no satisfactory explanation why it took from 1989 until 2 November 2000, a period in excess of 10 years, before the application for an extension of time was made. The ground stated in the application for an extension of time was not supported by an affidavit.
The grounds upon which the applicant seeks leave to appeal, in the event that an extension of time is granted, are that:
"1.Police fabricated evidence against [the applicant].
2.The evidence is tainted and effected [sic] by fraudulent conduct.
3.They fabricated (Police) Similar Fact evidence.
4.I pleaded guilty to gain a technical advantage, to stop Similar Fact evidence being used, that the Similar Fact evidence was fabricated by Police."
The applicant maintains that when he appeared in the Supreme Court on 27 February 1983 and entered pleas of guilty to counts 6, 7 and 8 on the indictment, he did so notwithstanding that he was "innocent of all of the above offences". He says that the reason he entered the pleas of guilty was that the Crown in good faith intended to lead similar fact evidence. He came to the conclusion that if similar fact evidence had been allowed, the chances of acquittal on counts 2, 3, 4 and 5 on the indictment would be such that there would be no reasonable prospect of receiving a fair trial and acquittal. He contends that the reason he says "fair trial" is that the brief which was put together by police officers was fabricated. In particular, he says in his written submission to the Court that:
"The reason I say fair trial is that the Brief which was put together by Police officers was fabricated. I had a fair idea of this when I returned to 149 Alma Road, North Perth, after I was arrested and I saw a police officer remove a torch from an old suitcase on the verandah, at best you will have to take this as an allegation and it would be impossible for me to prove."
Given the applicant's concession that this was an allegation which it was not possible for him to prove, and had nothing to do with his plea of guilty, it may be put to one side.
The starting point is that, in relation to the offences the subject of counts 1, 6, 7 and 8 on the indictment, the applicant was convicted on his own plea of guilty. At the time, the applicant was represented by leading Queen's Counsel, a specialist in the criminal jurisdiction, who represented the applicant both in relation to the matters on which he pleaded guilty and in respect of the other offences on the indictment of which the applicant was convicted after trial. The contention by the applicant was that he has since discovered that the evidence was tainted by fraudulent conduct by the police in fabricating evidence against him.
The applicant says that he was subsequently served with election papers in relation to the offences involving H which contained what he described as an "undated" statement, which the applicant also referred to as "the Disclosed Statement" a copy of which was marked DR 1. In that statement the complainant H says that on the night of Monday July 26, 1982, she went to bed at about 9.50 pm. Before going to bed she checked the front door and it was locked. The back door was closed, but she did not check to see if it was locked. Eventually, she half woke up at about 5.30 am and dozed off until about 6.00 am. A few minutes she heard floorboards creaking. It happened twice and then stopped. She knew there was someone in the house and sat up immediately. A man sprang into the doorway and flashed a torch into her eyes. She screamed and shouted. He knelt on the bed and took a pillow and put it over her head. She was screaming. There was a struggle during which he took his trousers off, grabbed her hand and put it onto his penis. This conduct was repeated. She said the man tried to penetrate her vagina and tried to kiss her vulva. The man threatened her by saying, "If I don't come, I'm going to really bash you up".
The man then tried to penetrate the woman's vagina again from the front but could not, but he got a partial erection. He then turned H over onto her side and penetrated her rectum with his penis. He once again penetrated her vagina slightly with his penis. Later he penetrated her vagina from the rear and, as she put it, "He then had sex with me and I am pretty sure he ejaculated". The man withdrew and said, "Stay there. Don't move". He then left.
The complainant then telephoned a neighbour who came over to the house. H told the neighbour that she had been raped and the neighbour contacted the police.
The complainant gave the following description of the man:
"The man that raped me was about 5' 6" or 5' 7", Australian, medium build, fair skin, his eyes were very light possibly blue-grey. He had a new beard because I felt that when I pushed him away. His hair was short, slightly curly and it was medium to dark brown. He was wearing long trousers, either tan or brown in colour. He had a shirt which was opened at the front. He had the sleeves rolled up and I think he had a T shirt on under the shirt.
He spoke with an Australian accent not particularly educated and he spoke with very little variance in the tone of his voice.
There was a smell about the man. He didn't smell unclean but I smelt alcohol (not beer) and cigarettes on his breath.
There was a certain smell about the man.
I later recalled that it was band‑aids and on the night that he had raped me he appeared to have had band‑aids over his fingers because I could smell then and felt the sharp edges.
About six months ago I bought a box containing 50 Band‑aids from Coles in North Perth.
I have since only used about 4 to 8 of them. I also had some friends staying with me and before they left they gave me some Band‑aid strips which came from Europe. I had placed these strips on top of the other band‑aids because the box was full.
On a late [sic] date I checked the box and found that it contained only 21 band‑aids and the strips which had been given to me.
I did not use any of the other type of band‑aids from that Monday.
When I had seen the mans [sic] eyes for a moment I thought that he had something wrong with one of them. Both his eyes and voice reminded me of a person called Derek, who I had bought some furniture from in 1980. His shop had been on the corner of Brisbane and Lake Street, Perth."
In October 1983 H made an application for criminal injuries compensation pursuant to s 4 of the Criminal Injuries (Compensation) Act 1970 (WA) for injury and loss suffered by her as a result of her rape by the applicant on 27 July 1982.
At that stage the applicant had been sentenced to total terms of imprisonment of 13 years with respect to all offences. H swore an affidavit on 5 October 1983 in support of her application. A copy of the statement which she gave to the police on 27 July 1982 was annexed as an exhibit to the affidavit marked "B". This was a statement taken by a police officer on 27 July 1982. That statement was referred to by the applicant as the "undisclosed statement" which was the original statement made to the police on the day after the offence was said to have been committed. In the statement dated 27 July 1982 H gave an account which was basically the same as the account given in the later statement dated 8 September 1982. However, the relevant passage in the earlier statement was as follows:
"When I had seen the man's eyes for a moment I thought that he [sic there] was something wrong with his right eye but I'm not certain about that. Both his eyes and his voice reminded me of a person named Derek, who I had bought some furniture from in 1980. His shop was on the corner of Brisbane and Lake Streets, Perth. It may not have been him but when I first saw him, I thought that's who it was."
The final sentence in that passage was omitted from the statement dated 8 September 1982.
The applicant maintains that upon receipt of the application papers and the statement of H in support of her application for criminal injuries compensation, he assumed that the undisclosed statement was identical to the disclosed statement. The applicant says that it was toward the end of his sentence that he had to make a decision whether to dispose of all the documents in his possession relating to the case. He then set about reading the documents and became aware of a material difference between the statement which was handed to him in the brief and the statement which was handed to him in the matter of the claim for criminal compensation. Also, he noticed that there was a material difference between the earlier statement and the disclosed statement dated 8 September 1982. Specifically, on p 2 of the statement dated 27 July 1982 the complainant described how the man grabbed her hand and put it onto his penis which was not erect and said, "I could feel that he was circumcised".
The applicant submitted that this was an important piece of identification evidence, but was not incorporated in the "undated statement" of H. This was clearly a mistaken reference to the statement dated 8 September 1982 (ie, the disclosed statement). It was submitted that the non‑disclosed statement was an evidential statement to which the applicant was entitled as a matter of law.
I note that in the statement dated 8 September 1982 the complainant said:
"He said, 'Help me get my thing up or I'll bash you.'
He kept saying, 'Go on help me get my thing up.'
I kept saying, No! He could not get an erection. I told him to go and that it would be safe if he just went.
He then told me that if he didn't get it up, he was going to bash me.
He tried to kiss me and I pulled my face away and said, 'No.' "
The applicant submitted that he was not circumcised and enclosed a medical report of a Dr Y K Wong dated 12 June 2000 which shows that, on examination on 12 June 2000, the applicant was not circumcised. There was no evidence of any relevant surgery.
The applicant says in his notice of application that the "tainted evidence" on which he relies only became known to him just before his release from prison. The "tainted evidence" is the omission from the statement disclosed to him by the Crown for the purposes of his trial that H said that she could feel that he was circumcised. This has been contradicted by the medical report. Notwithstanding the absence of formal proof, I am prepared to proceed upon the assumption that the applicant was not in fact circumcised. It is on the basis of this evidence and the non‑disclosure of the "tainted evidence" that the applicant maintains that there has been a miscarriage of justice.
The applicant says that at the time the offence alleged against him was committed, there was someone else who was committing a series of similar offences. By coincidence, when the applicant was arrested, the offences committed by the other person stopped. This led police to wrongly assume that the applicant was the serial offender. After some weeks, however, the serial offender was in fact arrested. No evidence was produced by the applicant to substantiate these claims.
The starting point for the consideration of this application is that the applicant was convicted on his plea of guilty in respect of the offences the subject of counts 1, 6, 7 and 8 on the indictment. In such circumstances there must be a very strong case and exceptional circumstances demonstrated in order to justify setting aside a conviction based upon a plea of guilty, particularly where, as in the present case, the applicant was represented at the material time by leading Queen's Counsel, who was a specialist in the criminal jurisdiction. He was also represented by the same counsel on the trial of the other offences alleged against him on the indictment, in respect of which he was found guilty. In such a case, a Court of Criminal Appeal will not set aside a conviction on a plea of guilty unless the applicant or appellant can demonstrate that there has been a miscarriage of justice.
The applicant contended that the case against him was tainted by "fraudulent conduct" on the part of the police by their failure to disclose the original statement made by the complainant to police on 27 July 1982. The applicant also went further to claim that police fabricated other evidence against him. The applicant was unable to identify the officer or officers alleged to have fabricated the evidence against him. His submission was that the proper inference from the evidence was that, on the balance of probabilities, the evidence against him on the offences to which he pleaded guilty was fabricated.
At the same time, however, the applicant informed the court that:
"… this is basically my argument: the reason that I entered pleas of guilty was that the Crown in good faith intended to lead similar fact evidence. The similar fact evidence we will have a look at but at the present moment I will put forward the evidence that I can prove. I was subsequently served with election papers in relation to these offences. Such election papers contained the undated statement of [H], the disclosed statement."
The "disclosed statement" is in fact the statement dated 8 September 1982. The applicant contended that there was more than one difference between the statement dated 27 July 1982 ("the undisclosed statement") and the disclosed statement. In addition to the statement that the complainant could feel that the person who assaulted her was circumcised, the applicant said that the disclosed statement omitted the reference in the undisclosed statement to the fact that the man who assaulted her had a torch which she described as follows:
"The torch was about 10" long, chrome, like a Police torch."
In the disclosed statement the words "chrome, like a Police torch" were omitted.
As has been seen, the applicant also pointed out that in the undisclosed statement H had said that the eyes and voice of the man reminded her of a man named Derek from whom she had purchased some furniture in 1980 at a shop on the corner of Brisbane and Lake Streets in 1980. She also said that:
"It may not have been him but when I first saw him, I thought that's who it was."
As already noted, that sentence was omitted from the disclosed statement. The applicant submitted that the removal of the sentence left a positive and unqualified identification. The applicant pointed out that the complainant was a school teacher. He acknowledged that she had purchased some furniture from him and that her recognition of him:
"… was going plainly as something to do with eyes and something to do with the person's voice. All I'm saying is that she thought about this person could have only been on those characteristics: voice and eyes."
It was contended by the applicant that the words omitted, namely, "It may well not have been him", meant that in her original statement she had not in fact identified him. What is left, however, is that H, as the complainant, was only able to say:
"Both his eyes and voice reminded me of a man called Derek, who I bought some furniture from in 1980."
The complainant had not said, "I identified this person as a man called Derek …". The evidence of identification in both statements was no more than that the applicant reminded her of a man called Derek from whom she had purchased some furniture some two years before. One other feature of the case against the applicant on the merits in relation to H was that, as noted above, the complainant said that there was a "certain smell about the man". she went on to say that the man who assaulted her had band-aids on his fingers and that there were band- aids missing from a box of 50 she had purchased some six months previously.

The applicant alleged that the police fabricated the evidence regarding the band‑aids. No evidence was produced or referred to by the applicant in relation to this matter so far as the complainant H or the police were concerned. In fact, after the applicant had pleaded guilty to the counts on the indictment relating to the complainant H, counsel for the Crown indicated that in relation to the case against the applicant involving the complainant A, the Crown proposed to lead evidence tending to show a striking similarity between the evidence in relation to that case and the evidence against the applicant in relation to the offence the subject of plea of guilty in which H was the complainant. The similar facts were, first, that in each case there was a housebreaking offence committed in the early hours of the morning; the accused then encountered a woman alone in the house; each of the women was attractive; each of them was alone and subjected to a similar offence or offences of sexual violence; in each case the offender was in possession of a similar torch acquired shortly before the offence was committed; and in each case the offender's blood group was Group O. These similarities were sought to be relied upon in the trial of the offence involving A to establish that the identity of the offender was the same in each case. It was also contended that in each case the offender attempted to have oral sex with the victim and placed a pillow over the head of the victim to prevent identification, although the attempt was not pursued in the case of H. Finally, and significantly, in the present case, it would be the evidence of H that the applicant wore band‑aids on his fingers, presumably for the purpose of masking the leaving of fingerprints. In that case the deposition indicated that the band‑aids were found by the applicant on the premises, although none of the used band‑aids were actually recovered. In the case of complainant A, band‑aids, which it was said had been used in the same way and for the same apparent purpose, were later found in and about the bedroom in circumstances in which it was said they could only have emanated from the intruder.
Counsel for the Crown, in opening the case against the applicant in respect of A, said that it was proposed to lead evidence from two police officers, having some 15 years' experience as police officers, that they had never come across band‑aids being used in that way. It was submitted that this was a unique feature of the behaviour of the applicant which provided a positive factual link between the commission of the offences involving each of the complainants H and A. Reference was made to evidence in the depositions by Sergeant Gregson that he had put it to the applicant that he was wearing band‑aids on his fingers on each occasion in order to conceal his fingerprints. The applicant's answer was, "So what? I often use band‑aids on my fingers when I do jobs; so do other people".
As it happened, the learned Judge ruled that the band‑aid evidence was inadmissible on the trial of the applicant involving the offences alleged in relation to the complainant A.
The learned Judge deferred sentencing the applicant in respect of the offences involving H until after the trial of the offences involving A, of which the applicant was also convicted. In his submissions in relation to sentence for the offence involving complainant H, the applicant's counsel said:
"In respect of the offence of carnal knowledge in relation to Lake Street, I am instructed by Ryll that he never intended as such to commit that offence. He says that it may have occurred during the course of the incident. Of course, it is not necessary with carnal knowledge to have specific intent with relation to that. He says that it may have occurred by accident but it was never his intention to in any way harm the woman. He did on one occasion, according to the depositions, make a threat to her and, of course, the mere fact that he was in the house must have been very terrifying for the lady."
The learned sentencing Judge then noted that the whole exercise would have been terrifying. Counsel for the applicant then continued:
"I am not trying to mitigate that; I am just pointing out perhaps, Sir, that out of this very bad offence it might be considered not the worst type in relation to that particular type of charge.
When he got into the house, as I have said, he did, according to the depositions, threaten her on one occasion - I think he raised his hand - and indeed the lady herself says in her statement:
'I had co-operated to a certain extent because this person had threatened me and I was in fear of my life.'
There was no great violent struggle in relation to the commission of these offences and, indeed, my instructions are from Ryll that on the night in question when these offences took place, his words to me were, 'If she'd screamed or yelled out I would have come to my senses, I would have stopped', and in my submission that is a matter in mitigation."
It was clarified that the first matter in mitigation was the plea of guilty. Counsel went on to say:
"I suppose, when one is looking at this particular offence as opposed to other offences of a similar nature.
The other matter I'm instructed to bring to your attention is that when the young girl asked him to desist in undertaking certain activities, he did. In my submission, that is a matter in mitigation also."
So far as sentence was concerned, the applicant was sentenced to imprisonment for 8 years in respect of each of the offences of rape involving H and A but, by reason of the totality principle, the sentences were made concurrent. For the "unnatural offence" (ie, the penetration of the rectum) in addition to the rape of H, the learned Judge imposed a further term of imprisonment for 2 years, on the basis that this otherwise extremely lenient sentence was imposed to keep the overall sentence "within limits", in conformity with the totality principle. So far as the offence of unlawfully confining a person in her room was concerned, which involved the complainant A, a sentence of imprisonment for 3 years cumulative was imposed producing a total effective term of imprisonment of 13 years. The remaining offences on the indictment each resulted in concurrent sentences of 2 years. A minimum term to be served before eligibility for parole was 6 and a half years taking into account time which the applicant had spent in custody.
The applicant maintained that the evidence regarding the band‑aids and, in particular, that relating to the band‑aids said to have been found at the house occupied by complainant A, was fabricated. At the trial of the applicant in relation to the offences committed against complainant A, the Crown submitted that similar fact evidence of the use of band‑aids in relation to the offences committed against H should be admissible together with the evidence about band‑aids in the trial of the applicant with respect to the offences involving A. In the case of A, there were band‑aids found on the floor about the bed and two more were found by A at the back of a drawer from which the applicant had removed a jewellery box. The latter two band‑aids were in a circle as if they had come off a person's fingers.
In the end, the learned Judge ruled that, so far as the band‑aids were concerned, there was not:
"… sufficient evidence of striking similarity of sufficient strength to safely admit it in the trial and … it would not be admissible as an exception under the similar facts rule …"
His Honour also concluded that the prejudicial effect of the evidence would very much outweigh its probative value.
It follows from the above that allegations made by the applicant with respect to the fabrication by police officers of evidence concerning the band‑aids was only of relevance in the context of the trial concerning the offences alleged to have been committed in relation to complainant A. They had no bearing in relation to the plea of guilty in respect of the offence the subject of the complaint by H. Although the applicant made a number of criticisms of the evidence in relation to the finding of band‑aids in the house occupied by A, none of that material had any bearing upon the offence to which he had pleaded in relation to complainant H. Whatever may have been the position in relation to the evidence of the band‑aids alleged to have been found at the house occupied by A, it was of no relevance to any appeal by the applicant in respect of his conviction for the offences in relation to complainant H or the evidence which was to form part of the Crown case in relation to those offences. It follows that the authorities relied upon by the applicant, including Hip Foong Hong v Neotia & Co [1918] AC 888; and Cabassi v Vila (1940) 64 CLR 130 at 146 - 147 per Williams J, have no relevance in the present case.
The applicant informed this Court that the reason why he entered a plea of guilty in respect of the offences involving the complainant H was "… the fact that the Crown wanted to trial [sic try]" all of the offences alleged in the indictment together. As the applicant put it, in that case:
"There would of been no reasonable prospect of an acquittal so I entered a plead [sic] of guilty to gain a technical advantage."
It follows in those circumstances that the applicant, having been represented by counsel and the plea of guilty entered in circumstances where the applicant sought to obtain a forensic advantage, it was necessary for the applicant to demonstrate some exceptional circumstances disclosing a miscarriage of justice before the plea of guilty could be set aside: cfLim v Bateman [1999] WASCA 305 at [35] per Scott J. In that case at [39] - [40] Scott J also said:
"Where, as here, the appellant was represented and the plea of guilty was entered in circumstances where the appellant sought to obtain a forensic advantage from that early plea of guilty, the appellant must demonstrate some exceptional circumstances disclosing a miscarriage of justice before the plea of guilty can be set aside.
As Kirby P said in Liberti v R (1991) 55 A Crim R 120 at 122:
'For good reasons, courts approach attempts at trial or on a appeal in effect to change a plea of guilty or assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; and Savig (1986) 22 A Crim R 73 at 81.'
See also Williams v Beverley (1998) 103 A Crim R 332."
On 28 July 1982 the applicant made a statement to the police in which he admitted entering the house occupied by complainant H. In essence, he said that when he went into the house he heard a woman scream. He went into her room and tried to calm her down. He admitted having sexual intercourse with the complainant and taking a purse from her. He endeavoured to make out that this was with her consent. He admitted that he had lost a torch at the premises. He also said:
"I then started thinking about what had happened, I thought about what had happened at the house, I had no intention of raping a woman, I think it was that I came across a woman that was in the nude which aroused me and she co‑operated to a certain extent and only complained.
I had sold the woman some furniture at some stage. It was some time ago and I had delivered the furniture to her house and I had been inside her place.
I didn't know that she was still living in the house."
The applicant later participated in a record of interview with police officers on 4 August 1982. On that occasion the statement which he made earlier was put to him and he was asked to indicate anything in the statement which he wished to change. The following then appears:
"Q. Having read this statement is there anything further that you wish to say?
A. Yes. On top of the second page where I said that the torch had my name on it. What I meant was that it could have had some of my fingerprints on it. It didn't have my name written on it.
Q. Is there anything else that you wish to change?
A. Yes. On top of the third page where I said that I lost the torch. That is not right. I hid it under some drums in the backyard of a house in my panic. Also on the bottom of the second page I said that I lost the purse. What really happened was that I hid the purse under the drum with the torch in my panic.
Q. Did you search through the purse?
A. No.
Q. The other day you took us to a laneway behind Brisbane Street where you indicated to us four green 44 gallon drums which were on there [sic] sides. What can you say about those drums?
A. It was under one of those drums that I showed you that I hid the torch and purse.
Q. Were the drums on their sides when you hid the torch & purse there?
A. No.
Q. What did you do after you hid the torch & purse?
A. I went up onto Brisbane Street, down to Beaufort Street and then from there straight into the city.
Q. Is this the torch?
DETECTIVE SERGEANT GREGSON SHOWS RYLL A GREEN OR WHITE 2 CELL TORCH.
A. Looks like the one.
Q. Is this the purse you took from the house in Lake Street?
DETECTIVE SERGEANT GREGSON SHOWS RYLL A BROWN LADIES FOLD PURSE.
A. Yes. that looks like it.
Q. The other day you told me certain things in relation to the torch.
Did you have this torch before you went to the house in Lake Street?
A. Yes.
Q. Is it fair to say that only shortly before you went to the house that you got possession of it.
A. Yes."
The record of interview also contains an acknowledgement by the applicant that this was a true and correct record of interview made by the applicant of his own free will with no threats or promises.
There was evidence from an independent witness, a Mr Morris, who was the owner of premises situated at 184 Brisbane Street, Perth. He found a torch and a purse near four drums stored in the backyard. The torch was a green and white 2 cell type and the purse was a ladies folding purse which contained cash and various personal papers. He handed these to the police on 3 August 1982.
The applicant was interviewed by Detective Sergeant Higgins on 28 July 1982 in the company of Detective Bourke at 40 Burnside Street, Bayswater. The applicant's de facto wife was at the residence. The applicant admitted having delivered furniture to a woman's house in Lake Street, Perth saying that it was a semi‑detached house on a corner, not far from his shop. The applicant denied ever having been back to the house since delivering the furniture. However, according to the statement of Detective Sergeant Higgins, he said to the applicant:
"The woman that lives in this house in Lake Street was assaulted yesterday morning at approximately 6.00 am and she has identified you as being the person who assaulted her. Do you remember your movements that morning?"
The applicant said, "I didn't assault her, I was with my girlfriend, Lynda, all night". The officer said, "Are you prepared to introduce me to Linda now, so I can verify your story?" The applicant said:
"Look, I wasn't home. I don't want Lynda to get involved. I went to a couple of gambling clubs and stayed out all night."
He later said that he left a club about 5.00 am or just after. Asked whether he went straight home, he said:
"Look, I am not stupid. You haven't picked me up for nothing. I'll tell you what happened. I lost my money at the club so I walked around the streets looking for a place to break into to get some money."
He was then asked whether he broke into the semi‑detached house that he mentioned earlier. The applicant said, "Yes, I got into the place and got a purse, but I didn't touch her".
It was then put to him that H complained that she had been raped and her purse was stolen. The applicant said, "I admit going into the house and getting a purse but I didn't touch her. I've got a good sexual relationship with my girlfriend".
The applicant said that he got in through the back door which was closed, but not locked and that he found the purse in a bag in the kitchen. It was put to him that H had said that she bit the intruder on the left little finger. After some prevarication the applicant admitted that H had bitten him.
The applicant was then asked to remove his shirt. He agreed to do so and did so. The officer examined his chest and back and located several scratches on his chest and right shoulder. Asked to explain these, the applicant said, "She did it". The officer then said to the applicant:
"The woman has stated that you are the person who raped her and she has also claimed that you placed your penis into her rectum. Is this correct?"
The applicant answered, "I didn't rape her, I made love to her. That's bullshit about putting it up her arse, she's telling lies about that".
The evidence of Detective Sergeant Higgins was corroborated by Detective Bourke.
In his submission to this Court, the applicant stated that he signed the statement, the record of interview and various photographs which were put to him "because I believed at the time that my life was in danger". He also claimed that one officer (unidentified) said to the other officer (unidentified), "I will get my gun and shoot him". He also said that he was beaten by officers; he asked them to contact his lawyer and was refused; he was segregated into the women's section of East Perth Lockup to make sure there was no possibility of him being able to make contact with anybody outside, although he managed to convince a fellow woman prisoner to contact his solicitor, Mr Richard Bayley; he alleged he was under interrogation for at least 12 days; and he was so disorientated that the police actually managed to convince him that Kathy Wayne moved into 149 Alma Road, North Perth in the middle of July, whereas he now has proof that it was the middle of June. None of these contentions were supported by any evidence.
As noted earlier in these reasons, the applicant said that upon his release from prison he took the undisclosed statement and the disclosed statement to Police Internal Affairs. He also said that the police officer, who did not identify himself, informed him that the police officers who were involved, "are now running the Police Department and his advice to me was to do nothing and enjoy the freedom I have now". He says that he now knows that the officer in charge is retired, which diminishes his fear of him, but this was the reason that he did not appeal earlier because, having been "interrogated and framed for crimes he did not commit" he was terrified that "one day they could just do this to you all over again". All of the material to which I have referred was said to prove that the evidence against the applicant was:
"… tainted by fraudulent conduct, even though I say to this court it cannot be my responsibility to prove every element is tainted, in a criminal jurisdiction, it is my submission to you that once the applicant has proved fraudulent misconduct then the whole must fail."
In my opinion, the various allegations made by the applicant to the Court by way of submission and not by way of evidence do not begin to establish or prove that his plea of guilty was as a result of police misconduct, or out of fear as a result of threats which had been made to him. On his own admission the plea of guilty was to obtain what was an unspecified "technical advantage". Given the strength of the case against him, there appears to have been every justification for his plea of guilty.
It is now more than 11 years since the applicant was released from prison having served the sentences imposed upon him by the learned sentencing Judge. While the circumstances which will amount to a miscarriage of justice can never be defined exhaustively, experience has demonstrated that there are three particular categories of case in which a plea of guilty will be set aside. They are, first, when the appellant or applicant did not understand the nature of the charge or did not intend to admit guilt; if upon the admitted facts the appellant or applicant could not in law have been guilty of the offence; or if the guilty plea was obtained by improper inducement, fraud or intimidation and the like: Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996 at 5 per Parker J.

In this case, the applicant was advised by an experienced and very competent senior counsel before entering the pleas of guilty. The same counsel was also his counsel on the trial of the offences involving the complainant A, which proceeded immediately after he had been convicted of the present offences on his plea of guilty: cf Nuttall v The Queen, unreported; FCt SCt of WA; Library No 920090; 26 February 1992 at 5 per Malcolm CJ.
In my opinion, the applicant's submission that he pleaded guilty merely to gain a technical advantage and stop similar fact evidence being used was untenable. Had it been considered necessary to sever the indictment or conduct separate trials with respect to the two offences, steps to this end would undoubtedly have been taken by the experienced counsel by whom the applicant was represented. In my opinion, the applicant's plea of guilty was a recognition of the fact that had the matter gone to trial, he would have inevitably been convicted.

In my opinion, there is no merit whatever in the application for an extension of time within which to make an appeal against conviction. Any such appeal is doomed to failure. For these reasons I would refuse the application for an extension of time.
ANDERSON J: I agree that the application for an extension of time should be refused, for the reasons given by Malcolm CJ which I have read in draft form.
STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by the Chief Justice. I agree with him, for the reasons that he has expressed, that the application for an extension of time to apply for leave to appeal against conviction should be refused. I have nothing to add.