R v Bayliss

• 18 -IN THE COURT OF CRIMINAL APPEAL 60713/01

WOOD CJ at CL SULLY J DOWD J

14 February 2002 Regina v GB Judgment 1 THE COURT: The applicant has filed a notice of appeal against his conviction in the District Court on 28 February 1994, upon an indictment charging him with one count of indecent assault. By reason of the circumstance that this notice was not filed until 25 September 2001, he requires an order of this Court for an extension of time within which the appeal may be lodged: s10(1) and (3) Criminal Appeal Act (NSW) 1912. 2 In order to determine whether such extension should be granted, it is necessary to review the circumstances in which the conviction came to be recorded, as well as the subsequent history of the proceedings. The material before the Court reveals in this regard that:

(a) The Crown case presented against the appellant was that between 31 August 1990 and 1 November 1990 at Wyoming, he touched the victim (MK) on the vagina from outside her clothing, during a game of hide and seek.

(b) It was also asserted by the Crown that during the course of playing the same game he committed identical offences in relation to two other young girls (LC and LK).

(c) Each offence was alleged to have occurred after he had invited the three girls into the premises where he was living with his parents, having offered them food and drink.

(d) Initially the appellant appeared for trial on 9 August 1993 before His Honour Judge Urquhart DCJ, in answer to an indictment charging offences separately concerning each of the three girls; that trial was, however, aborted when one of the complainants disclosed that she had kept a diary from which she had been able to calculate or determine the day on which the offences were committed. (e) Prior to the date of this trial, particulars had been properly sought by the defence in order to obtain more particularity as to the possible date of the offences, and subpoenas had been issued to various nursing homes in order to establish whether the appellant might have had an alibi arising out of his practice of travelling to Sydney, and to Newcastle, to visit relatives at such homes. The production of a diary entry narrowed the date of the alleged offences to 7 October 1990, and it was upon the application of the appellant, in order to allow this date to be further explored, that the jury was discharged and the trial adjourned. The appellant now somewhat surprisingly suggests that he was improperly pressured into consenting to this adjournment, which, on any view, was properly sought.

(f) The appellant then appeared before his Honour Judge Patten DCJ in the District Court at Gosford on 28 February 1994, at which point his Honour was informed that the parties sought a sentence indication upon the basis that there would be a plea of guilty to one count (involving MK), with the other two matters being taken into account on a Form 2. His Honour had placed before him, by consent, a statement of facts, the antecedents of the appellant, the statements of the girls, a letter from the mother of MK, and a letter from a Salvation Army Officer. This last mentioned document was tendered on behalf of the applicant. The circumstances in which this hearing was sought were in issue in so far as the appellant said that it occurred without his consent. Rather, he said, it arose out of a unilateral request made by the Crown over his opposition.

(g) To resolve this issue, it is necessary to refer to the evidence which was led from the solicitor from the Legal Aid Commission, and from counsel who had instructions to appear for the appellant. Their account of events sharply contradicted that of the appellant, and it was corroborated by written and signed instructions concerning the holding of a sentence indication hearing (Exhibit 1). In summary, their evidence, which we would accept in preference to that of the appellant, shows that on the morning of 28 February, the Crown Prosecutor raised with defence counsel, the possibility of the Crown's accepting a plea of guilty to one count, with the other two matters being dealt with on a Form 1. This was discussed with the appellant who gave a written instruction, initially in terms that he did not accept the Crown offer.

(h) Some little time later, defence counsel and the Legal Aid solicitor said, the appellant indicated to them that he would like to reconsider the option of receiving a sentence indication, the procedure for which had been explained to him. He then gave signed, written instructions, added to the end of Exhibit 1, to the effect that he had reconsidered his position, and that he would like a sentence indication hearing to be sought on his behalf. In the light of these instructions, which were signed by the appellant, and in the light of the evidence of trial counsel and the Legal Aid solicitor, we would reject the appellant's evidence to the effect that the sentence indication hearing was held contrary to his will and wishes, or that its nature was not understood by him.

(i) When the matter came before his Honour Judge Patten, he gave an indication, after a consideration of the material placed before him, that the sentence which would be imposed for the offence on the indictment, taking into account the Form 1 matters, would be one of periodic detention for 9 months. He stood the proceedings down to allow the appellant time to take instructions and to consider his position.

(j) Again, there is a sharp issue between the appellant and his parents on the one hand, and his legal representatives on the other hand, as to what occurred at this point of the day's proceedings. It was the appellant's account that either his counsel or solicitor said to him in the course of a discussion, in the presence of his parents: -

" Hey mate, you are getting a fantastic deal. It is only weekend detention. Cop it sweet, plead guilty "

He said that he also specifically remembered the solicitor saying:-

"If you do not plead guilty you will never get Legal Aid again."

It was his account that pressure was continuously placed upon him, that he was unable to control his lawyers, and that at the end he submitted, and agreed to enter a guilty plea. At this point he said he had remarked: -

"Stuff it, I will follow your legal advice and plead guilty";

This, he said, was because although he had repeatedly claimed that he wanted his trial, and wanted it on, they would not give it to him.

(k) The evidence given by his parents did not assist the appellant to any great degree. While his mother described the atmosphere in the legal room as hostile and upsetting, she was somewhat vague as to what was actually said by the appellant and his legal advisers. She did say, however, that the appellant was asserting that he was " not going to plead anything but not guilty. " His father similarly described the ambience as intense, and said that counsel was repeatedly saying " accept the sentence indication or do 3 to 5 years, and you won't survive" . This is an observation which the appellant did not mention, even though it could hardly have been forgotten had it been said. Additionally, it was his account that the Legal Aid solicitor had said " if you sack us you will never get Legal Aid again ". Again, this is an observation which is very different in its terms from the version offered by the appellant.

(l) The account of the appellant's legal representatives we would accept as truthful and accurate. It was corroborated by the written instructions which were prepared and then signed by the appellant. It was their account that, after discussing the sentence indication, the appellant originally gave a written instruction (Exhibit 2) to the effect that he intended to plead not guilty, and asked his legal advisers to seek leave to adduce alibi evidence, even though he had not advised them of a specific alibi before 28 February. Counsel said that he had informed the Crown Prosecutor that the matter would proceed as a trial, and arrangements were thereafter made to place the matter before his Honour Judge Maguire, who was also sitting in the District Court that day.

(m) A little while later, counsel said, the appellant indicated that he would like some more time and advice in relation to the matter. Counsel replied that he would arrange for that to be done, and he suggested that the appellant arrange for his parents to come to the Court. After they arrived, he said that he discussed the " ins and outs " of the case in their presence, in the course of which he explained the effect of the sentencing indication, pointed to possible outcomes in a trial, and expressed his opinion as to the strength of the Crown case.

(n) Counsel and the Legal Aid solicitor each said there were no threats made or voices raised, and that they discussed the matter properly and civilly, and without any pressure being placed upon the appellant to enter a plea of guilty.

(o) They also said that it was not until 28 February that the appellant had suggested that he had definitely been in Newcastle on 7 October 1990, that being the date nominated by the victim, after consulting her diary, as the day of the offence. As a consequence, no notice of alibi had been given as required, it being material in that regard that the records of the Newcastle nursing homes which the appellant had earlier said he had visited from time to time had been investigated for possible entries showing his presence there, without success. It was in those circumstances they said, that the appellant had been advised that he could not give any positive evidence in support of an alibi, and that there was a risk of the Crown prosecutor's relying on a late offer of an alibi for 7 October as a recent invention which had potential adverse consequences for his case.

(p) Following these various discussions, they said that the appellant gave instructions which were again reduced to writing and signed by him, to enter a plea of guilty to one count, with the other two matters being taken into account on the Form 1. Those instructions were to the following effect: - " I instruct my legal advisers that I intend to plead guilty to charges of commit act of indecency on one indictment (three charges) and two on a Form 2. I understand by pleading guilty I am admitting the offence/s that is: I accept what the girls say is correct even though I have no real memory of the incident. I had been drinking heavily at the time and understand I may have suffered some brain damage as a result of alcohol consumption. The consequences of plea/s of guilty has been fully explained to me. That is, I am aware that as a result of a sentence indication hearing that I will get 9 months periodic detention. No inducement has been held out to me to plead guilty. I am aware that should I indicate a plea of guilty and wish to vary it, then my present legal advisers will have to withdraw it."

(q) Thereafter, the appellant appeared before his Honour Judge Maguire and entered a plea of guilty to the count in the indictment. The matter was then stood over for the appellant to reappear before his Honour Judge Patten for sentencing.

(r) The appellant duly appeared before his Honour Judge Patten that day, and after adhering to his plea he was, on the basis previously noted, sentenced to 9 months imprisonment to be served by way of periodic detention.

(s) The Legal Aid solicitor said that, after the various documents were prepared in relation to his entry into periodic detention, the appellant said that he wanted to appeal because he thought that the sentence was too severe. She made an appointment for him to attend at her office on 1 March, at which time she would help him prepare an appeal form and explain the procedure for seeking bail. In due course, with her assistance, a notice of appeal against sentence was prepared and filed, and an application was made for Legal Aid. That application for Legal Aid was later refused on 25 March 1994.

(t) Notwithstanding, on 6 April 1994 the applicant filed an application for leave to appeal against the sentence. His application was called over by the registrar on various dates, but on 8 August 1994 it was summarily dismissed by the Court for want of prosecution.

(u) The sentence of periodic detention was thereafter fully served by the applicant.

(v) On 24 September 1996 the appellant received an order requiring that he give restitution in the sum of $6000.00 in respect of compensation which had been awarded to the victim MK (in the amount of $8000.00). Although he did not give any evidence in this regard, the appellant put to the Legal Aid solicitor that the question of Victim's Compensation had never been brought to his notice. She gave evidence to the contrary of that, indicating that in the course of the initial instructions on 6 January 1993 she had expressedly advised him of the victims' entitlement to claim compensation. His reply, she said, was that If he was found not guilty, then he would sue the girls, their parents, and the " Sun " newspaper. We see no reason to disbelieve her evidence to the effect that Victims' Compensation was discussed with him, particularly as it was recorded in her instructions.

(w) The instructions embodied in Exhibit 3 do note that the appellant was aware that should he " indicate a plea of guilty and then wish to vary it, then his present legal advisers would have to withdraw it ". The Legal Aid solicitor indicated that this was a standard form, and that the word 'it', being the final word in the relevant sentence, may well have been a typographical error. However, she recalled that advice was given to the appellant after he had given his instructions to plead guilty, that if he thereafter decided to change his plea the legal advisers would have to withdraw from the case. Clearly, that reflected their ethical obligation, and it explains the recollection that the appellant and the other witness had as to the question of the legal advisers withdrawing having been discussed. It is, of course, quite contrary to their account of what was said. Again, we have no reason to disbelieve the Legal Aid solicitor or counsel on this aspect of the case.

(x) It also emerged, in the course of cross-examination of the Legal Aid solicitor, that the appellant asserted that the written instructions which bear on their face, his signature, were forgeries, so far as his signature is concerned. It was his suggestion that she had information available or material which he had signed in her brief, from which she was able to copy and forge his signature. She unequivocally denied any such suggestion, and again we have no reason to disbelieve what she said in this regard. 3 The appellant, who appeared in person to argue the application, contends that the conviction and sentence should be set aside for a number of reasons which, relevantly, involve submissions that:

(a) the sentencing indication hearing was improperly sought unilaterally by the Crown;

(b) he was given corrupt legal advice, and improperly pressured into pleading guilty;

(c) the evidence placed before the Court for the sentence indication was inadmissible;

(d) what occurred that day amounted to a criminal conspiracy to pervert the course of justice and to obtain (on the part of MK) a financial benefit by deception;

(e) he has been intimidated out of pursuing his case until now;

(f) the plea was unlawfully obtained by fraud and duress. 4 In amplification of these submissions he suggested, at various times during the hearing, that there had been a conspiracy to suppress the evidence of the complainants and to avoid having their evidence tested in court; that it was never shown that the complainants were existing persons; that his legal representatives had deliberately misled Judge Maguire; that his signature to the instructions had been forged by one or other of his legal advisers and that the sentence indication was a "ruse by people in authority to get a matter resolved expeditiously". 5 Critical for this application is the fact that a period of seven and a half years elapsed between the date of conviction and the filing of the appeal, and that during this period an application for leave to appeal against sentence was summarily dismissed for want of prosecution. Additionally there is the circumstance that the sentence has been entirely served. 6 In Regina v Lawrence [1980] 1 NSWLR 122 Nagle CJ at CL and Yeldham J observed at p 148: - " On many occasions it has been observed by Courts of Criminal Appeal, that intending appellants should not assume that delays in filing notices of appeal or applications for leave to appeal, and especially considerable delays, will automatically be excused. See for example R v Sunderland, R v Tyrell, and R v Waterhouse. This Court takes the opportunity to emphasise again that it should not be assumed that a failure to give notice to appeal, or notice of intention to appeal, or to furnish proper grounds of appeal within time will be excused. Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed. This was the view expressed by Street CJ in R v Sunderland, and we think it is a proper view." (References ommitted). 7 As Greg James J observed in Regina v Brehoi [1999] NSWCCA 113 the burden which rests upon an applicant in relation to an application of this kind, will be "harder to discharge the longer any suggested matter impugning the integrity of the plea and known to the applicant is allowed to lie.". 8 It is true that s 10(3) of the Criminal Appeal Act confers an unfettered discretion on the Court to extend the time where it is just, under the circumstances, that such an order be made. Inevitably that requires that attention be given to whether or not there is, in the circumstances of the particular case, room for concern that there may have been a miscarriage of justice: see R v Young [1999] NSWCCA 275 per Smart AJ (with whom Studdert and Dunford JJ agreed) at paras 35 to 37 and 48; also see R v O'Donahue (1988) 34 A Crim R 397. This is because the existence of a reasonable misgiving as to whether an appellant received a fair trial according to law, will very often constitute the exceptional circumstance which would overcome the fact of lengthy delay. 9 Also to be taken into account is the well accepted principle of finality, noted in decisions such as Regina v Liberti (1991) 55 A Crim R 120 and KCH [2001] NSWCCA 273 at para 31. Additionally, it is appropriate to have regard to the difficulties which are likely to be occasioned to the Crown and to victims, if a retrial is sought very many years after proceedings were understood to have been brought to a finality, and the appellant has sat by, as he has here, without seeking to enforce rights which he must have known he had. 10 In relation to the principle concerning the regularity of a plea and the duty that rests upon legal practitioners when giving advice to an accused person concerning the offer of a plea of guilty, we can do no better than to adopt the observations of Ipp AJA, with whom Sperling J agreed, in KCH [2001] NSWCCA 273 at paras 33 and 100-101: - "The law regards the need for a plea of guilty to be freely and voluntarily made as a fundamental element of the administration of justice. Thus, as Brennan, Toohey and McHugh JJ said in Meissner v The Queen (at 142): " If conduct has the tendency to induce a person to plead guilty when that person would have pleaded not guilty had he or she exercised a free choice in his or her own interests, the actus reus of an attempt to pervert the course of justice is established ". It follows that legal practitioners who represent accused persons owe a duty to the court not to bring improper pressure to bear on their clients to plead guilty. In particular, that duty would be breached by a practitioner deliberately or negligently giving the client false information that the trial judge had expressed a particular opinion as to the prospects of the client being found guilty. Such a duty is part of the general duty not to corrupt the administration of justice which in turn is derived from the public interest in ensuring that the administration of justice is not subverted or distorted by dishonest or negligent practices." 11 As was additionally said by Brennan, Toohey and McHugh JJ in Meissner v The Queen (1995) 184 CLR 132 at 143: - " Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs. Conduct is likely to have the tendency to interfere with a person's free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused's freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal proceedings. " 12 Finally, as a matter of clear legal principle, we observe that since it is the appellant who contends that a miscarriage of justice has occurred, he bears the onus of demonstrating that fact: Regina v Boag (1994) 73 A Crim R 35 at 37. To the extent to which this depends upon a resolution of matters of fact, he bears the onus of establishing the necessary facts: Regina v Ross (NSWCCA 20 April 1994). 13 When invited to provide an explanation for the lengthy delay between the date of conviction and the filing of the notice of appeal, the appellant offered several reasons, all of which, in our assessment, were totally unconvincing. None provides any cogent explanation for his delay. First he said that it was due to the fact that he was "a pacifist", and it would have meant giving evidence against other people. Next, he suggested that it may have had something to do with the accumulated effect of three sets of subsequent proceedings brought in the Local Court and by way of appeal in the District Court, in which he had been involved, two of which related to charges involving alleged breaches, on his part, of an Apprehended Violence Order, obtained by a neighbour in late 1996. The bringing of these proceedings in the Local Court he asserted amounted to "consistent harassment" of him. 14 In this respect, the first conviction was recorded on 17 June 1997, and confirmed on appeal on 19 November 1998. The second conviction was recorded on 24 September 1998 and confirmed on appeal on 31 August 1999. On this occasion there was also a conviction for an offence of common assault. This eventually led to sentences of imprisonment of 6 months and 3 months being imposed, following the refusal of the appellant to enter into a bond to be of good behaviour for a period of 2 years. 15 The third set of proceedings involved a charge of assault of a Crown Prosecutor, for which a conviction was recorded on 3 May 2001 and again, confirmed on appeal, on 10 August 2001. That Crown Prosecutor had appeared in the District Court proceedings of 31 August 1999.

16 These various convictions, the appellant contended, had all been improperly obtained. Although he had wanted to clear his name, he had not done so because the Crown, he said, kept wrongly taking him back to court. In this regard it appears that he, in some way, relates these proceedings to the original proceedings in respect of which he believes that a conspiracy existed. That conspiracy he claims has been maintained, and is one to which the Crown is a party. As a result, he suggested, he had suffered psychological harm and he had been unable to prosecute the appeal. Thirdly, he said, although he felt strongly about what happened in 1994, he had been a "slow considerer", who did not have an understanding of the law. 17 None of these reasons offered has any cogency. The case is one where no new or fresh evidence has come to light, or where any genuine reason for delay has been identified. The appellant on his account was frustrated and dissatisfied from the time of conviction, yet he did nothing about it, even though all the relevant facts were within his possession. He initially lodged an appeal against sentence only, and it was dismissed because he failed to prosecute it. The case is one where, for no good reason, he has simply failed to pursue the rights which he had to appeal against conviction, and to seek to have the plea withdrawn. 18 That is not necessarily the end of the matter, because the Court can still intervene if it is of the view that there was a tangible risk of a miscarriage of justice having occurred. 19 The appellant has not submitted any credible evidence in support of his submission that there was a criminal conspiracy to pervert the course of justice and/or to obtain a financial benefit by deception. There is no rational basis, on the material before us, to suspect that there ever was any such conspiracy in existence. So far as this rests upon some inference that there was a plan to secure Victims' Compensation, and that the girls' entitlement in that regard was wrongly withheld from him, that is entirely refuted by the evidence of the Legal Aid solicitor, to the effect that this matter was specifically brought to his attention during the initial instructions. 20 By reason of the written instructions, and the clear and cogent evidence of trial counsel and solicitor, which we prefer to that of the appellant and his parents, none of whom made a favourable impression on us, we do not believe that there is any factual basis for the various assertions made to the effect that the appellant's plea was entered as a result of fraud or duress or improper pressure from his legal advisers. Nor is there any credible basis to assume or to find that he was given corrupt or inappropriate legal advice, or that he has been in any way intimidated from pursuing his rights since the time of the conviction. In fact, his unsupported allegations of conduct which would amount to serious criminality on the part of others, including an assertion that his legal advisers were working hand in hand with the Crown to make sure that a conviction was obtained, do him no credit whatsoever. 21 To the contrary of his unfounded claims, we are of the view that he received careful and competent advice from his legal advisers, who acted prudently, at every step, in obtaining his written and signed instructions. The evidence before us supports the proposition, and no other proposition, that the plea was one which he entered, in the exercise of free choice, after having been properly advised as to his rights. 22 The record also does not bear out any of the various other matters which the appellant seeks to raise as irregularities or procedural deficiencies. It is convenient to note them briefly: (a) The evidence placed before his Honour Judge Patten at the time of the sentence indication hearing, and subsequently during the sentencing proceedings, contrary to the position contended for by the appellant, was admissible and followed the usual practice for such proceedings.

(b) The holding of a sentence indication hearing clearly was sought by both parties, and it was not an event which was adverse to the interests of the appellant, as his submissions appear to have assumed. Rather, it was a proceeding of potential assistance to him, particularly having regard to the benefit which attached to the utilitarian value of the plea, which he later offered.

(c) Although notice was not given in advance of the sentence indication hearing, as provided for in Practice Note 31, this was a procedural requirement, potentially in the way of the applicant, and favourably for him, it was waived.

(d) In the circumstances in which the sentence indication hearing was conducted, there was no necessity for the complainants to have been called as witnesses, nor was there any necessity for them to be called as witnesses during the sentencing proceedings, since he was taken, by his plea, to admit the allegations which they made. His contention that there was a conspiracy of silence to keep them out of the witness box has absolutely no substance, as is the case with the additional assertion that such complainants might not even have existed. In this regard, he made a quite spurious allegation that the statements were not properly authenticated, since they did not bear the signatures of the DOCS officers who were present during the interviews. The statements were signed by each of the complainants, and they were witnessed by a Police Officer. There is absolutely no basis for the appellant's querying of the existence of the complainants, or of the genuineness of their statements, or indeed of the genuineness of the prosecution.

(e) The effect of the order made by his Honour Judge Urquhart on 9 August 1993 was not, as the appellant contends, such that the Crown was required to present him for trial on a not guilty basis. It was at all times his option, which he exercised, to plead guilty when he was called on for trial.

(f) Although the letter from the mother of MK may not properly have amounted to a Victim Impact Statement in accordance with the law in force at the time, that was not a matter which disadvantaged the appellant, since in accordance with authority it could not have been taken into account in determining the appropriate sentence. Nor was any logical basis demonstrated for the contention presented by the appellant, that its preparation revealed prior "exact knowledge" on the part of the Crown and of MK's mother, that the appellant would be pressured into pleading guilty to a count on an indictment charging him with the indecent assault of MK. It is a regular practice for such documents to be prepared in advance of the hearing, in case the matter results in a plea or a conviction.

(g) Again contrary to the assumption of the appellant, it was not necessary for his Honour Judge Maguire to have empanelled a jury when the matter was called on before him. In fact it would have been an error of law to have done so once the appellant entered a plea of guilty. In addition there was no basis whatsoever for the appellant's assertion that his counsel concealed from his Honour that there was to be a trial. It remained at all times the right of the appellant to plead guilty or not guilty and thereby to determine whether there should be a trial or not.

(h) Again, there is no basis in the submission that his legal representatives were incompetent in relation to the alibi. They acknowledged that, at an early stage, the appellant had indicated that from time to time he was absent from his home, visiting relatives either in Sydney or Newcastle. Put in such broad terms, it would not have been possible to serve a proper alibi notice. It was not until the Crown narrowed the date to a particular day that this became a relevant consideration sufficient to found an alibi notice. It was only on 28 February that the appellant specifically nominated that he had been in Newcastle on 7 October. Before then, his solicitors and counsel had acted entirely correctly in subpoenaing the records from the various nursing homes so as to investigate dates on which the appellant could be shown to have been out of the relevant area. Again, their advice to him as to the possible adverse consequences of a false or late alibi was entirely appropriate and correct. There is nothing in the submission that this involved incompetence on their part, or was indicative of their being party to a conspiracy. 23 In all of these circumstances we are unpersuaded that any tangible risk of a miscarriage of justice has been shown. In the absence of any acceptable explanation of the lengthy delay in the filing of the notice of appeal, we order that the application to extend the time for the filing of the notice of the appeal be refused, and that the appeal be dismissed. **********

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