R v Beattie [2000] NSWCCA 201 | Case summary

1 SPIGELMAN CJ: I invite James J to deliver the first judgment. 2 JAMES J: John Patrick Beattie has applied for an extension of time in which to appeal against his conviction on one count of breaking, entering and stealing and, if an extension of time is granted, he appeals against his conviction. Mr Beattie has appeared in person on this application but was legally represented at first instance. 3 The applicant pleaded guilty in the District Court to the charge of breaking, entering and stealing and was convicted and sentenced as long ago as 17 February 1994. He was sentenced by his Honour Judge Gallen to a sentence of three years, consisting of a minimum term of one year commencing on 29 March 1999 and expiring on 28 March 2000 and an additional term of two years. The applicant also seeks an extension of time in which to apply for leave to appeal against the sentence imposed by Judge Gallen. 4 According to the prosecution evidence, the offence to which the applicant pleaded guilty before Judge Gallen was committed between 3 January 1993 and 10 January 1993. Between those dates the victim of the offence and his family had been away from their home on a holiday. When they returned from the holiday on 10 January 1993 the victim noticed signs of a forcible entry into the house and, in particular, a forcible entry through a window at the rear of the house. It was discovered that a number of items of property were missing from the house. 5 A police fingerprint expert, Sergeant Wilson, succeeded in developing fingerprints on two pieces of glass from the broken window at the rear of the house. Another police fingerprint expert, Sergeant Watson, on comparing photographs of the fingerprints developed from the two pieces of broken glass with fingerprints taken from the applicant, found that a fingerprint on each of the two pieces of glass matched the print of one of the applicant's fingers. This fingerprint evidence was the basis of the prosecution case against the applicant. 6 On 1 April 1993 a police officer, Detective Sergeant Thomas, who was the police officer in charge of the investigation, spoke to the applicant at a police station. According to Detective Sergeant Thomas's statement, he put to the applicant the allegation that the applicant had been responsible for the offence and that the applicant's fingerprints had been found on pieces of broken glass from a window of the house. According to Detective Sergeant Thomas's statement, the applicant replied to the effect that he knew nothing about the offence and that he did not wish to say anything more. 7 Committal proceedings, in which the applicant was legally represented, took place on 16 November 1993 and 2 December 1993. At the conclusion of the committal proceedings the applicant was committed for trial. 8 Because so many years have elapsed since the applicant was dealt with in the District Court, there is no longer a full record of the proceedings in the District Court. However, it can clearly be inferred from records which are still available that there was a sentence indication hearing before Judge Gallen, that his Honour indicated the sentence which he later passed on the applicant and that the applicant decided to accept the indication 9 The applicant was later indicted and pleaded guilty to the charge of breaking, entering and stealing. The applicant asked Judge Gallen to take into account and Judge Gallen took into account in sentencing the applicant, three further offences, namely, an offence of failing to appear at court on 11 February 1993 in contravention of a bail undertaking, an offence of breaking and entering other premises with the intention of stealing and an offence of having in his possession a housebreaking implement. Judge Gallen then proceeded to pass sentence on the applicant. 10 This Court has been provided with the transcript of his Honour's remarks on sentence. However, the remarks on sentence are very brief and such reasons as Judge Gallen gave for arriving at the sentence which he imposed would have been contained in his judgment in the sentence indication proceedings, that judgment being no longer available. 11 It would appear that Judge Gallen made the sentence which he imposed commence from 29 March 1999, because that was when the minimum term of a sentence which had then recently been imposed on the applicant would expire. It would also appear that the fact that the sentence to be imposed would be cumulative on the minimum term of another sentence was the explanation for Judge Gallen imposing a sentence divided into a minimum term of one year and an additional term of two years. 12 The applicant escaped from custody while serving the minimum term of the other sentence and, after he was recaptured, the sentences to which he was subject were adjusted to allow for the time he had been at large. As a result of this adjustment, the minimum term imposed by Judge Gallen has not yet expired and will not expire until 18 June this year. 13 The notice of application for an extension of time in which to appeal and the notice of appeal were filed on 12 April 1999. The applicant has since lodged with the Court two letters of 28 February 2000 and 14 April 2000, which contain submissions, and a statutory declaration of 12 April 2000. On the hearing of the application, the applicant has put before the Court the transcript of the committal proceedings in November and December 1993 and has also made further oral submissions. 14 The only explanation offered by the applicant for the delay in appealing against his conviction is that, since he was convicted, Detective Sergeant Thomas, who was in charge of the police investigation and who spoke to the applicant on 1 April 1993, has been convicted and sentenced for a number of serious offences, including perverting the course of justice, perjury and corruptly receiving commissions. 15 The applicant has submitted that the Court should grant an extension of time in which to appeal against conviction and should allow the appeal against conviction, notwithstanding the plea of guilty entered before Judge Gallen. Apart from relying on the subsequent convictions of Detective Sergeant Thomas, the applicant has submitted that he has always disputed that he was guilty of the offence and that he pleaded guilty before Judge Gallen, only as a result of pressure exerted on him by his solicitor, Mr Goldberg, who allegedly told the applicant that no one would believe the applicant in preference to Detective Sergeant Thomas. 16 The applicant has also submitted that, according to Detective Sergeant Thomas's statement, when the applicant was interviewed by Detective Sergeant Thomas on 1 April 1993, Detective Sergeant Thomas told the applicant that his fingerprints had been found on pieces of broken glass from the window at the house, whereas the evidence given by the fingerprint experts was to the effect that the applicant's fingerprints had been obtained only on 20 April 1993 and that the fingerprint expert who had made the comparison had not made the comparison until 5 May 1993. 17 Logically, the first question for this Court to determine is whether it should grant the applicant an extension of time in which to appeal. On such an application the Court will usually require some satisfactory explanation of why an appeal was not brought within the time allowed especially if, as here, the delay is considerable. However, in deciding whether to grant an extension of time in which to appeal, the Court has usually entered upon some examination of the likelihood of any appeal succeeding. This Court has clear power to allow an appeal against conviction, even though the appellant pleaded guilty, if it appears to the Court that the appellant did not appreciate the nature of the charge or did not intend to admit that he was guilty or the facts of which there was evidence could not in law support a conviction of the offence charged or if on any other ground there would be a miscarriage of justice if the conviction was allowed to stand. See R v Liberti (1991) 55 A Crim R 120. However, the Court exercises caution bordering on circumspection, because of the high public interest in the finality of criminal proceedings and because a plea of guilty is taken to be an admission of all the ingredients of the offence charged. 18 In the present case, if an extension of time was granted, I would be of the opinion that an appeal would not be likely to succeed. The appellant pleaded guilty after a sentence indication hearing, in which he was represented by Mr Goldberg, who is a highly experienced criminal lawyer. There is before the Court an affidavit by Mr Goldberg, in which he denies that he told the applicant that a court would not believe the applicant in preference to Detective Sergeant Thomas and in which Mr Goldberg also denies that he advised the applicant to plead guilty or that he exerted any pressure on the applicant. Mr Goldberg was cross-examined by the applicant before this Court but the oral evidence given by Mr Goldberg did not, in my opinion, detract from the evidence by Mr Goldberg in his affidavit. In my opinion, the long delay in bringing the appeal of itself throws serious doubt on the applicant's claim that he did not intend to plead guilty and only did so as a result of pressure from his solicitor. 19 As at February 1993 the applicant had a very extensive criminal record, including previous convictions for breaking, entering and stealing and it is quite implausible that the applicant would not have understood the nature of the charge to which he was pleading guilty or the effect of a plea of guilty. On the fingerprint evidence alone, the applicant could clearly be properly convicted of the offence with which he was charged. 20 The explanation given in the committal proceedings by Detective Sergeant Wheatley of the apparent discrepancy between the date of Detective Sergeant Thomas' interview of the applicant and the dates of the obtaining of the fingerprint evidence was that an earlier set of fingerprints had been taken from the applicant and compared but that this earlier set of fingerprints had been inadvertently omitted from a police fingerprint form, thus necessitating the taking of a second set of fingerprints from the applicant on 20 April 1993. 21 Although Detective Sergeant Thomas was the officer in charge of the police investigation into the offence, his evidence did not incriminate the applicant. Detective Sergeant Thomas did not allege that the applicant had made any admissions to him. Detective Sergeant Thomas's evidence was that the applicant had denied that he had committed the offence. 22 As I am of the opinion that if an extension of time was granted any appeal would be unlikely to succeed and as I am also of the opinion that the only explanation offered for the delay in bringing the appeal is unsatisfactory, I would propose that the application for an extension of time in which to appeal be refused. 23 SPIGELMAN CJ: I agree. 24 HEYDON JA: I agree. 25 SPIGELMAN CJ: The order of the Court is that the application for an extension of time is refused.

R v Beattie

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