Jones v The Queen [2018] VSCA 11

4 When sentencing the applicant on 21 October 2016, the judge made the following observations concerning the apology:[2]

As you now acknowledge, as is made clear in the report of the forensic psychologist, that belief provided no excuse whatsoever for what you did to him. As you have told her, and as you make explicitly clear in your comprehensive letter of apology, you now accept without reservation that what you did cannot be excused or diminished in any way, no matter what you might have thought when you were so drunk.

...

Exhibit 5 was a most important document, in my view. It was your letter of apology. I have read many letters of apology in this position over the years. They are not often tendered but they are from time to time and now, after nearly a decade here on the Bench, I have read many of them. I must say I found your letter to be one of the more compelling letters of apology. Having watched you yesterday and again this morning, I accept that your apology is completely genuine. I can only hope that the victim will accept it as genuine also. It will probably provide him little solace but, as you say in your letter, it may add something to his 'sense of closure', as you put it, although the reality cannot be escaped, he will never achieve closure because he will go on suffering the effects of your vicious assault upon him for the rest of his life in one way or another.

In any event, I accept that your apology, which is expressed in very strong terms, is heartfelt and is it [sic] evidence of deep remorse on your part. And so, whereas I'm obliged to accord you a discount for your plea of guilty in this case, as you will see, I am providing you with a significant discount because I accept that it is consistent with genuine remorse on your part and a genuine desire to rehabilitate yourself. ...

5 In the event, the judge sentenced the applicant to be imprisoned for three years, and fixed a non-parole period of two years.[3]

6 Despite having pleaded guilty, however, by a notice dated 14 November 2017, the applicant seeks an extension of time within which to file notice of application for leave to appeal against his conviction, and has filed a notice of application for leave to appeal.[4] The 'grounds' upon which the applicant seeks an extension of time are as follows:

1. The [applicant] contacted the Court of Appeal at the earliest opportunity, within the 28 day deadline in an attempt to lodge the appeal. The paperwork was retained by the Court until the [applicant] could rework it to be compliant.

2, The [applicant] sought to obtain legal funding through VLA from October 26th 2016 until October 2017, experiencing long delays in the process, before finally being refused VLA funding.

1. Due to being impecunious and being refused funding, the [applicant] was unable to obtain any form of legal representation or advice, despite contacting many legal firms and public officials.
2. The [applicant] was not legally trained, making the preparation of the Written Case more difficult.
3. The [applicant] had limited access to legal materials for research or assistance whilst incarcerated.
4. The [applicant] had limited use of preparatory facilities (printing, photocopying).
5. The [applicant] experienced delay in lodgement due to ongoing physical and mental health problems (which also contributes to a ground of the Appeal) - see Key v Police [2010] SASC 192.

7 In support of the application for an extension of time, the applicant relies on an affidavit, sworn 9 November 2017. The applicant deposes that after being sentenced, he 'realised that important evidence had not been called'. He immediately informed his counsel that he wished to appeal his conviction, but was told that he 'had no grounds'. A lawyer from Victoria Legal Aid ('VLA') then initiated an application for VLA funding. That application was refused on 17 November 2016. The applicant states that he made multiple further attempts to obtain VLA funding; but, on 28 August 2017, following independent review, VLA's decision to refuse funding was upheld on the basis that there existed 'no reasonable grounds for appeal'.

8 The applicant's affidavit also sets out his efforts to obtain the hand-up brief (which, when he received it on 20 April 2017, was missing some documents); his communications with Justice Connect and various politicians seeking assistance; and his difficulties assembling a written case whilst incarcerated at Hopkins Correctional Centre. He claims that the distress caused by the process led him to place himself on a month-long hunger strike in June 2017, and mental health problems further hindered his preparation of the required documents for an appeal. The applicant states also that he suffers with renal cancer, acetabular impingement in his right hip, and chronic pain.

1. There are five proposed grounds in the application for leave to appeal against conviction:
   1. The integrity of the applicant's plea of guilty is vitiated, insofar as the applicant was not in possession of all of the facts and did not entertain a genuine consciousness of guilt, such that to uphold the plea would be to occasion a miscarriage of justice.
   2. By reason of the fundamental error by counsel as to the admissibility of evidence of fundamental importance to the applicant's defence, improper advice was given by counsel as to its admissibility, and the evidence was not tendered or called, thus occasioning a miscarriage of justice.
   3. By reason that counsel did not tender or call evidence that would have resulted in a real possibility of acquittal, and that there were no possible tactical or reasonable grounds for counsel not tendering or calling this evidence, resulting in an unfair trial, thus occasioning a miscarriage of justice.
   4. The integrity of the applicant's plea of guilty is vitiated, insofar as the applicant was induced by impropriety on behalf of his legal representative, including imprudent and inappropriate advice and improper pressure, in circumstances whereby the applicant would not have otherwise have [sic.] pleaded guilty, such that to uphold the plea would be to occasion a miscarriage of justice.
   5. That the applicant was not fit to plead upon the time of arraignment, and that to uphold the plea despite the unresolved issue as to the fitness of the applicant to plead would constitute a fundamental failure in the trial process and occasion a miscarriage of justice.
2. The law relating to the grant or refusal of extension of time was summarised in Madafferi:[5]

The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[6] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[7] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[8] the length of the delay - and the reasons for it[9] - and the prospects of success should the extension be granted,[10] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[11] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[12] The discretion must, as we have said, be exercised according to the individual facts of each case.[13]

11 At the outset of the plea hearing, the prosecutor read from an Amended Summary of Prosecution Opening, which was in the following terms:

1. On Tuesday, 14 April 2015 at approximately 6.00pm the complainant received a message from the [applicant].
2. Between 4.17pm and 7.11pm the [applicant] and complainant exchanged 32 text messages and 7 phone calls. At 6.00pm the complainant gave his address to the [applicant].
3. At 6.32pm the [applicant] received an SMS notification from a taxi company that a taxi was approaching his pick up address, and at 6.34pm he spoke with the complainant for a period of 2 minutes. Shortly thereafter, the [applicant] sent a message to the complainant which stated, 'On my way'.
4. At 7.08pm the [applicant] was dropped-off at the complainant's address. A minute later he texted, 'Outside'. The complainant told him to come in, and the [applicant] called the complainant at 7.11pm for one minute.
5. When the [applicant] arrived at the complainant's door the complainant noted that the [applicant], had a lanyard around his neck and had a bottle of vodka with him.
6. The complainant let the [applicant] in and they moved into the lounge room to chat. The [applicant] sat on a beanbag facing the complainant on the sofa.
7. During the conversation the pair drank the [applicant's] vodka. Over a period of thirty minutes the [applicant] drank more than half the bottle, with the complainant consuming the balance of the bottle.
8. After they had consumed the vodka, the complainant was assaulted by the [applicant]. The complainant cannot recall precisely how the assault began, but does recall that at one stage he looked up and observed the [applicant] had removed his pants. He recalls he turned his head away but did not say anything.
9. The complainant then felt a hard punch to the right side of his face. The [applicant] said 'You fucking cunt'. The [applicant] continued to punch the complainant as the complainant unsuccessfully tried to stand up. The [applicant] then punched and kicked the complainant to the head and body over a period of about fifteen minutes.
10. The complainant moved on to the floor and crawled away from the [applicant]. He was stunned and in an enormous amount of pain, believing he was going to die. The [applicant] then came from behind and grabbed the complainant by his hair. He dragged the complainant backwards and threw him on the floor. He began again punching and kicking the complainant to the body and head for about 10 or more minutes, during which time the complainant lost awareness at some points.
11. The assault ceased again and when the complainant regained awareness he saw that the [applicant] had returned to the beanbag and that he was on the sofa. The complainant could hear the [applicant] talking but could not understand him.
12. The complainant states that his memory of the next few hours is blurred.
13. The complainant recalls that he crawled towards his bedroom. Once inside the complainant got into bed. At some point the complainant recalls that the [applicant] entered the room with a full bucket of water and tipped it onto the complainant's head. He said it was the complainant's fault, and at one point in the bedroom he also said, "how dare you take my sexuality from me."
14. The complainant awoke the next morning to knocking at the front door. He crawled out of bed and out of the room. When he left the bedroom he saw the [applicant] sleeping on the sofa. He continued crawling, in substantial pain, towards the front door.
15. Before the complainant reached the front door, the [applicant] again got up, rushed towards him and grabbed him by his hair. He punched the complainant to the back of the head and told him he was never to answer the door again. The [applicant] told the complainant to find the [applicant's] lanyard and phone cord.
16. The [applicant] went into the backyard and began to urinate on the grass. At this time, the complainant managed to get to the back glass door, slide it shut and lock it. He turned to the front door and collected his keys.
17. The complainant took a walking crutch near the front door to assist him to walk, went outside and locked the front door behind him. He was wearing only his underwear at this time.
18. The complainant went across the road and began knocking on neighbours' doors, but there was no answer. He then noticed the [applicant] approaching him. As a result, the complainant moved into the middle of the road and began screaming for help. A neighbour heard the complainant crying for help and telephoned police.
19. Another neighbour observed the complainant sitting in the middle of the road with the crutch by his side, saying 'help me'. He observed that the complainant's face was swollen, bloodied and bruised, with his arms and legs slumped forward and his body slightly swaying, struggling to stay upright. The [applicant], standing over him, took one step forward and kicked him to the chest.
20. The neighbour told the [applicant] to leave the complainant alone. The [applicant] approached the neighbour and calmly said 'I know this looks bad... he owes me stuff'. He referred to $400 worth of 'stuff' and said 'he won't let me get my stuff; this is the only way I can get my stuff'.
21. The neighbour told the [applicant] not to kick the complainant, and the [applicant] said he wouldn't hurt him anymore. He said 'I have the keys to his house; I'm just going to get my stuff', and he asked the neighbour not to call the police. He returned towards the complainant's house.

1. At 11.15am, police intercepted the [applicant] on McIntyre Road, Sunshine approximately 550 metres from the complainant's house. A search of the [applicant] revealed the complainant's wallet and driver's licence in the [applicant's] possession. The [applicant] was arrested.
2. The [applicant] was subsequently assessed by a Forensic Medical Officer and disclosed that he had consumed alcohol with a male acquaintance and then blacked out. The Forensic Medical Officer observed abrasions to the [applicant's] abdomen, upper back, right upper arm, and right hand. The [applicant] had dried blood, a bruise, abrasion and small swollen area on his left hand. The injuries were considered to be relatively recent and of minor severity.
3. When police attended at the home of the complainant they observed blood spatter on the front door step and door handle of the complainant's house. There was a significant amount of blood on the hallway floor with some hair, and there was blood in the bedroom and throughout the lounge room, including on the wall next to the sofa.
4. The contents of the house were strewn and furniture was broken.
5. The bedding appeared to be stained with blood.
6. Police located the [applicant's] phone between the cushions of the complainant's sofa.
7. The [applicant's] fingerprints were subsequently identified on a carton of cask wine located inside the address.

1. When emergency workers arrived at the scene they observed that the complainant had severe facial injuries and dried blood on his face and hands. He was taken by ambulance to the Alfred Hospital.
2. He remained at the Alfred Hospital until 23 April 2015 when he was transferred to the Caulfield General Medical Centre for rehabilitation. He discharged himself 2 days later.
3. His injuries included:

1. multiple abrasions, bruising and swelling to his face, neck and torso; 2. fracture to his ankle with joint deformity;

1. fracture to the nasal bones involving fragment displacement; 2. fracture of the elbow. His elbow had sustained a different fracture three weeks earlier and had been operated on. The previous closed wound had reopened, causing infection; 3. bleeding around the brain on the left frontal area with blood tracking between the two hemispheres; 4. post-traumatic stress disorder; and 5. as a result of the above, scarred airways involving infection from difficulty breathing.
2. Surgery was performed on the complainant's elbow and nasal bone under general anaesthesia.
3. Specialist orthopaedic surgery was performed on his ankle with a plaster cast applied.

1. The [applicant] participated in a recorded interview and predominantly gave 'no comment' responses. He did, however, state:
   1. The previous night was the first time he had been to the complainant's house.
   2. That he had decided that he would consume alcohol that evening after a period of abstinence.

12 We are prepared to assume in the applicant's favour that he desired to appeal against his conviction from late October 2016, and that he endeavoured to obtain assistance from VLA up until the independent review on 28 August 2017. And, in light of the fact that he is unrepresented and incarcerated, we are also prepared to assume in the applicant's favour that following the independent review he moved with reasonable expedition to himself lodge the necessary papers to initiate proceedings in this Court. Nonetheless, the application for extension of time within which to appeal against conviction must, in our opinion, be refused, since none of the proposed grounds has any prospect of success.

13 It is convenient to turn first to proposed ground 5, which claims that the applicant was not fit to plead upon the time of arraignment. There is no substance in this ground. Nothing that we can see in the material suggests that the applicant was unfit to plead or to be tried[14] at either time that he was arraigned and pleaded guilty. Indeed, such material as might bear on the topic points in the other direction. Thus, consultant psychologist Carla Lechner, said in her report of 8 September 2016 (Exhibit 2):

[The applicant] was administered the Beck Depression Inventory, a self-report questionnaire that canvasses a range of psychological and physiological symptoms of depression experienced by the respondent over the past two weeks. He was co-operative with the testing procedure and had no difficulty with reading, understanding and responding to test items. His score on the BDI falls into the 'mild' range, this being consistent with his presentation at interview.

...

At interview [the applicant] impressed as capable of reflecting on the impact that his behaviour has on both himself and others but socially and emotionally immature. He is able to identify triggers to his negative feelings but is less well able to manage them and relies on alcohol to block out his distress. [The applicant] has ongoing symptoms of PTSD and some features of a Borderline Personality Disorder ...

14 Ground 3 is also lacking in substance. It complains that the applicant's counsel 'did not tender or call evidence that would have resulted in a real possibility of acquittal'. The short answer to this complaint is, of course, that the applicant pleaded guilty, so that there was no occasion for counsel to tender or call evidence which might have led to acquittal.

15 Proposed grounds 2 and 4 impugn the conduct of counsel. In considering these grounds, we recognise that the authorities establish that imprudent and inappropriate advice from counsel may lay the foundation for a successful appeal against conviction following a plea of guilty. So, for example, convictions were set aside following a plea of guilty in O'Connor,[15] where the applicant had pleaded guilty following erroneous legal advice as to the elements of the relevant offence.[16] And in a similar vein, convictions were also quashed in O'Sullivan,[17] where the accused pleaded guilty after police manufactured a false confession, legal advice provided to him being that the confession could not effectively be challenged.

16 Counsel, so it is suggested by grounds 2 and 4, gave 'improper advice' concerning the admissibility of evidence, and gave 'imprudent and inappropriate advice' and exerted 'improper pressure', and by virtue of that 'impropriety' the applicant was 'induced' to plead guilty. In his affidavit, the applicant deposed that in the course of conferring with counsel, he 'continued to maintain that he wished to defend the charge', but was advised that: 'sexual assault of the applicant had no relevance' to a defence; that if the matter proceeded to trial, the applicant would be found guilty; that upon conviction after trial, the applicant would be deported;[18] and that the only viable way for the applicant to potentially remain in Australia was by entering plea negotiations and pleading guilty to recklessly causing serious injury.

17 Assuming for the sake of argument that the applicant's affidavit accurately reflects counsel's advice, counsel's advice strikes us as realistic and proper. The applicant claims that he had been drugged and raped by the victim, but that his counsel failed to advise him that a statutory defence of self-defence was been available to him on the basis of that his actions were a response to his reasonable belief that he had been drugged and raped. Even had the applicant been drugged and raped by the victim, however, that conduct had concluded by the time the applicant launched his protracted and vicious assault upon the victim. Given the available evidence, in our opinion, had the issue of self-defence been put in issue at a trial, no reasonable jury could have failed to have been satisfied beyond reasonable doubt that the applicant was not acting in lawful self-defence at the time that he caused the serious injuries that he did to the victim. No reasonable jury could have failed to be satisfied that the applicant did not believe that his conduct was necessary in self-defence, or that his conduct was not a reasonable response in the circumstances as he perceived them.[19] Indeed, as Exhibit 2 illustrates, even on the applicant's own version of events as given to the psychologist Carla Lechner, the applicant admitted that 'his reaction was out of proportion to what was needed to defend himself'. In those circumstances, the applicant's best chance of avoiding deportation was by endeavouring to capitalise on a plea of guilty.

18 Finally, the first proposed ground contends that the 'integrity of the applicant's plea of guilty is vitiated, insofar as the applicant was not in possession of all of the facts and did not entertain a genuine consciousness of guilt'. It is without merit. Apart from the victim, nobody other than the applicant was in a better position to be 'in possession of all the facts'. Moreover, the applicant's assertion that he 'did not entertain a genuine consciousness of guilt' does not sit very happily with the apology tendered to his victim.[20] Indeed, the apology - unless it was a cynical device intended improperly to influence the judge to impose an unjustifiably lenient sentence - speaks eloquently as to the applicant's consciousness of his guilt at the time that he entered his plea.

19 In Meissner,[21] Dawson J observed:

The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.

20 An appeal against conviction will be entertained after a plea of guilty, however, only in exceptional circumstances[22] (the question for the Court always being, of course, whether there has been a substantial miscarriage of justice).[23] Nothing in the objective material - other than the applicant's post facto assertions - would permit a conclusion that by his plea the applicant did other than freely admit his guilt.

21 There is no prospect of any of the proposed grounds of appeal being upheld.

22 The application for an extension of time must be refused.

[1] The applicant has findings of guilt and convictions on 5 October 2010 for recklessly causing injury and resisting police; on 28 February 2011 for recklessly causing injury; and on 12 September 2014 for recklessly causing injury and unlawful assault. He has also been dealt with on three occasions between 2007 and 2012 for being drunk in a public place. The applicant was also dealt with by courts in Wales in 1995 and 1997 respectively for assault occasioning actual bodily harm, and for criminal damage and breach of the peace.

[3] Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that, but for the plea of guilty, he would have sentenced the applicant to four years' imprisonment, with a three-year non-parole period.

[4] See Criminal Procedure Act 2009, s 313.

[5] Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) ('Madafferi').

[6] Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [59] (Priest JA) ('Jopar').

[8] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).

[10] Ibid, 614 [33]. See also Rapovski v The Queen [2017] VSCA 175 [25] (Priest JA).

[11] Jopar [2013] VSCA 83; (2013) 44 VR 695, 707 [60].

[14] See Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 6.

[15] R v O'Connor (1992) 59 A Crim R 278 ('O'Connor').

[16] A similar situation arose in R v Liberti (1991) 55 A Crim R 120, resulting in convictions being set aside.

[17] R v O'Sullivan [2002] NSWCCA 98; (2002) 128 A Crim R 371.

[18] The applicant was born in Wales and moved to Australia in 2001. He has been a permanent resident since 2006.

[19] See Crimes Act 1958, s 322K(2).

[21] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (citations omitted).

[22] R v Murphy [1965] VicRp 26; [1965] VR 187; R v Vella (1984) 14 A Crim R 90; R v Kardogeros [1991] VicRp 19; [1991] 1 VR 269; (1990) 49 A Crim R 352; O'Connor (1992) 59 A Crim R 278, 283; R v Parsons [1998] 2 VR 478; Parsons v The Queen (1999) 195 CLR 619.

[23] Criminal Procedure Act 2009, s 276.