R v Carkeet

SUPREME COURT OF QUEENSLAND

CITATION: R v Carkeet [2008] QCA 143

PARTIES: R v CARKEET, Lee William (applicant/appellant)

FILE NO/S: CA No 42 of 2008 / DC No 2498 of 2001

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Conviction & Sentence)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 6 June 2008

DELIVERED AT: Brisbane

HEARING DATE: 28 May 2008

JUDGES: Keane, Holmes and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Grant the extensions of time necessary to allow the applicant to appeal against his conviction and to apply for leave to appeal against his sentence.Allow the appeal and grant the application, set aside the applicant's plea of guilty to count 3 on indictment No 2498 of 2001, and set aside the applicant's conviction and sentence on that count.The sentences imposed in respect of the other offences of which the applicant was convicted should not be disturbed.

CATCHWORDS: Criminal law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against conviction recorded on plea of guilty – where the applicant pleaded guilty to numerous charges on a “bulk arraignment” – where another person later admitted to, and was charged for, one of the offences to which the applicant had pleaded guilty – where the applicant pleaded guilty on the advice of his legal representatives – where the Crown later conceded that the applicant was not the perpetrator of the offence to which the applicant had pleaded guilty – whether the fresh evidence of the other conviction should be admitted – whether, notwithstanding the free and voluntary plea, the conviction should be set aside / Criminal Code 1899 (Qld), s 668E(1) / Borsa v R [2003] WASCA 254, referred to / Gallagher v R (1986) 160 CLR 392; [1986] HCA 26, cited / Kimmorley v Atherton; ex parte Atherton [1971] Qd R 117, cited / Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited / R v DAQ [2008] QCA 75, cited / R v Foster [1985] QB 115, cited / R v GV [2006] QCA 394, cited / R v Lee [1984] 1 WLR 785; [1984] 1 All ER 1080, cited / R v O (2003) 139 A Crim R 432; [2003] QCA 446, cited / R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited / R v Toro-Martinez (2000) 114 A Crim R 533; [2000] NSWCCA 216, cited

COUNSEL: S J Hamlyn-Harris for the applicant (pro bono) / T A Fuller for the respondent

SOLICITORS: Howden Saggers Lawyers for the applicant (pro bono) / Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I agree with the reasons of Fraser JA and with the orders proposed by his Honour.

HOLMES JA: I agree with the reasons of Fraser JA and the orders he proposes.

FRASER JA: On 27 September 2001 the applicant was convicted on his plea of guilty of a number of offences, including three counts of armed robbery. He was sentenced to concurrent terms of five years imprisonment for each armed robbery offence. He has served those sentences. In respect of one of those armed robbery offences the applicant now applies for an extension of time within which to appeal against his conviction and to apply for leave to appeal against his sentence.

The grounds of the proposed appeal and application for leave to appeal are that the applicant did not commit that offence, a different person has since been identified as the culprit, and that person has since been convicted of and sentenced for the offence.

Circumstances of the offence

The applicant’s conviction arose out of an armed robbery at the Camp Hill News Store on Old Cleveland Road at Camp Hill at about 12.45 pm on 23 March 2001.

At the sentence hearing on 27 September 2001 in the District Court no issue was taken with the description of the offence that was contained in a schedule of facts tendered by the prosecutor. The complainant was a 49 year old woman who was a part owner of the newsagency. The offender was seen standing at a bench outside the newsagency filling in a gold lotto form. He was said to have been wearing a cap and sunglasses and a jacket. In the prosecutor's oral submissions he stated that the offender was disguised to some extent. After the offender had waited for customers to leave, he entered the store and placed a note on the counter. The complainant saw something made of metal protruding from a pocket in the offender’s jacket.

The note read:

"Hold up all 50's and 20's Don't panic no alarm or I will shoot her be calm have 10 seconds".

The complainant originally refused to give any money to the offender and she activated alarms. The offender said to "just give me the money - hurry up". The complainant responded that this had happened to her before and she would not do so. After the complainant's husband arrived from the back of the store the offender told the complainant to hurry up, stop wasting time and give him the money. The complainant then opened the till and handed bundles of money to the offender. He then left the store.

The schedule of facts also referred to the method of detection and arrest of the applicant. As a result of a description given to police the applicant was nominated as a suspect. On 26 March 2001 the complainant and her husband identified the applicant as the offender after viewing a photo board. On the same day detectives approached the applicant in a police station where he was reporting in relation to another matter. The applicant fled. After a short chase he was apprehended. The applicant declined to take part in an interview about the matter.

The applicant's plea of guilty, conviction and sentence

The transcript of the sentence proceedings reveals that the applicant, who was legally represented, was arraigned in respect of 10 offences on one indictment and in respect of four offences, including the one in issue in this application, on another indictment. When asked whether he was aware of the nature of all of those offences the applicant answered "yes". He agreed also that he had been taken through the matters by his legal representative, that he had taken legal advice in respect of all of them, and that he was prepared to plead to all of the offences without each individual offence being read to him in full. He pleaded guilty to each of the offences.

The prosecutor outlined the facts concerning each of those offences and made submissions as to the appropriate penalty. Submissions were then made by the applicant’s legal advisor in mitigation of the sentence. Those submissions were consistent with the applicant's guilt of the offences.

The applicant was convicted of each of the offences with which he was charged. In respect of each of the three robbery offences he was sentenced to imprisonment for a term of five years with a recommendation that he be considered for parole after he had served 18 months of the sentence. He was sentenced to shorter concurrent terms of imprisonment for the other offences.

The applicant's explanation for his having pleaded guilty is that he was advised that it would not affect the sentence he would receive in any event for the other offences of which he was guilty.

Subsequent conviction and sentence of another person for the offence

The respondent has adduced evidence that demonstrates the truth of the applicant’s evidence that he did not commit the armed robbery offence which is the subject of these proceedings. One Damien Paul Godwin, was later charged with and convicted of that same offence. Godwin pleaded guilty to an ex officio indictment charging him with the robbery. He was convicted of the offence and sentenced to a term of imprisonment for it in the District Court on 12 August 2005.

The schedule of facts provided to the District Court on that occasion described the offence in virtually identical terms to the way it had been described in the applicant’s sentence hearing before a different judge years earlier.

Godwin was identified as the real culprit by fingerprint evidence. On subsequent forensic examination the threatening note which the offender had given to the complainant was found to contain two fingerprints. According to the schedule of facts in the sentence proceedings against Godwin forensic examination of the note matched the fingerprints on it with those of Godwin. On 7 September 2004 Godwin participated in a record of interview and admitted his guilt of the offence. He said that he had changed the number plates on his girlfriend's car and driven to the newsagency. He carried a piece of sawn-down curtain rod which he taped and coloured with a black pen to make it look like a weapon. Godwin admitted that he had walked into the newsagency and given the note to the complainant. He also provided a motive for the offence. It was that he needed the money to pay a gambling debt to someone who had threatened his girlfriend and the family.

The fingerprint evidence and the corroborating details of the offence given by Godwin confirm beyond any reasonable doubt that it was he, rather than the applicant, who committed the offence. The Court was informed by counsel for the respondent that the Office of the Director of Public Prosecutions accepts that the applicant is innocent of any involvement in Godwin’s offence.

On 17 February 2005 the Office of the Director of Public Prosecutions wrote to the applicant advising that subsequent investigations by the police had revealed new evidence incriminating another person, that person had made full admissions, and he was being charged for the offence. It was suggested to the applicant that he might wish to obtain legal advice about seeking a pardon from the Attorney-General.

The application for an extension of time admits that the applicant received that letter but it appears that he did nothing about it. As a result of later enquiries made by the applicant’s grandmother, on 5 December 2007 the Office of the Director of Public Prosecutions provided her with a copy of the letter of 17 February 2005. This seems to have resulted in the applicant seeking legal advice and ultimately filing the application now before the Court.

Discussion

Considerations relevant to the Court’s discretion whether to grant an extension of time within which to appeal against conviction were discussed in this Court’s decision in R v Tait,¹ in which it was said:

"[T]he Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant's appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay."

That passage does not exhaustively state all of the considerations relevant to the determination of an application for an extension of time.² Where refusal of an application for an extension of time would result in a miscarriage of justice the Court retains a discretion to grant the extension even in the absence of a satisfactory explanation for the delay.³

It is usually very difficult for an appellant to establish any miscarriage of justice in a conviction consequent upon the appellant’s plea of guilty. In Meissner v The Queen Brennan, Toohey and McHugh JJ said:⁴

"A court will act on a plea of guilty . . . when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."

That passage occurs in the course of a discussion about the question whether conduct designed to intimidate an accused person to plead guilty necessarily constitutes an attempt by the intimidator to pervert the course of justice even if the intimidator believes that the accused is guilty of the offence with which he or she is charged. The Court was not there considering the issue that arises in this case, which is whether or not a person who had entered a plea of guilty in the exercise of a free choice nevertheless might establish that the conviction later should be set aside on the basis that it constituted a miscarriage of justice.

When a person of full age and apparently sound mind and understanding enters a plea of guilty in open court in the exercise of a free choice, the circumstances in which that person might establish a miscarriage of justice resulting from the plea must be very rare indeed. As the above quote from Meissner indicates, it is not sufficient to point to evidence that establishes that the person is in truth not guilty of the offence.

In Borsa v R [2003] WASCA 254 Steytler J (Murray ACJ and Hasluck J concurring) said at [20]:

“It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. There must be a strong case and exceptional circumstances: Nutall v R , unreported; CCA SCt of WA; Library No 920090; 26 February 1992; Pilkington v R [1955] Tas SR 144 and Harman v Ayling , unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996. Before an appellate court will set aside a conviction of that kind, the appellant must show that there has been a miscarriage of justice: Duffield v R , unreported; CCA SCt of WA; Library No 950065; 14 February 1995 and Nobes v R , unreported; CCA SCt of WA; Library No 960486; 26 August 1996. In Harman, Parker J, at 5, after acknowledging that the circumstances which will amount to a miscarriage of justice can never be exhaustively identified, said that there are three well-recognised circumstances in which a plea of guilty will be set aside. The first is when the appellant did not understand the nature of the charge or did not intend to admit guilt; the second is if, upon the admitted facts, the appellant could not in law have been guilty of the offence; the third is where the guilty plea was obtained by improper inducement, fraud or intimidation and the like. See, in this respect, Meissner v R (1995) 184 CLR 132 at 157, per Dawson J, Maxwell v R (1996) 184 CLR 501 at 510 — 511, per Dawson and McHugh JJ, at 522, per Toohey J, and at 531, per Gaudron and Gummow JJ, and Tihanyi v R (1999) 21 WAR 377 at 390 — 391, per Murray J).”

This proposed appeal does not fall within one of those three categories of cases, but as is mentioned in that passage those categories cannot be regarded as exhausting the jurisdiction. The cases concerning the question whether a conviction may be set aside on the basis of evidence to the effect that the plea of guilty was not in fact a free and voluntary plea⁵ or otherwise did not reflect a consciousness of guilt⁶ cannot be regarding as comprehending all possible examples of a miscarriage of justice where the conviction was referable to a voluntary plea of guilty of an offence known to the law. The Court’s jurisdiction is statutory. It is not circumscribed otherwise than by the existence of a miscarriage of justice. Section 668E(1) of the Criminal Code provides that the Court on an appeal against conviction "shall allow the appeal if it is of opinion . . . that on any ground whatsoever there was a miscarriage of justice . . .". That provision is not limited to appeals against the verdict of a jury. In my opinion, under this section an appeal against conviction may be entertained in the rare and wholly exceptional circumstances of this case. I would accept as correct English authority to that effect in relation to a similar statutory provision.⁷

Obviously the sentencing court would not have accepted the applicant’s plea of guilty had evidence of the real culprit’s guilt and conviction of the same offence been available at the time of sentence. The respondent accepts that this fresh evidence demonstrates the applicant’s innocence of the offence. In my opinion the fresh evidence establishes a miscarriage of justice. That being so, although of course the applicant cannot say that he was unaware of evidence of his innocence when he was convicted, the Court is empowered to receive the evidence and to act upon it.⁸

The combination of circumstances which I regard as establishing a miscarriage of justice are that the evidence demonstrates beyond any reasonable doubt, as the Crown accepts, that the applicant was not in truth guilty of the offence, another person was guilty of the offence, and that other person has been convicted of and sentenced to a term of imprisonment for the offence.

In this case, most of the discretionary factors are against the applicant. He entered a plea of guilty perfectly voluntarily. His explanation for doing so is the cynical one that it would make no difference to the sentence which in any event would be imposed upon him for other offences. The applicant’s plea of guilty might have allowed the real culprit to escape the punishment he deserved for his offence. The applicant then was guilty of inexcusable delay in making this application. Despite being told by the authorities of his entitlement to apply for a pardon he did not take any steps to do that or to bring this application for years. He retains the alternative remedy of seeking a pardon. Furthermore, he has served his time. So far as the evidence in this proceeding reveals, the applicant gains nothing by the proposed appeal except the setting aside of this conviction.

Even taking all of those matters into account, in my opinion the proper exercise of the discretion is to admit the fresh evidence and set aside the conviction. This case is so exceptional that allowing the appeal will not undermine the fundamental importance of sentencing judges being entitled to act upon an apparently voluntary plea of guilty entered in open court as an admission of guilt that justifies entering a conviction. Allowing the appeal will not merely pardon the applicant of the consequences of his conviction,⁹ it will also appropriately remove the stain of his wrongful conviction altogether.¹⁰ The applicant is demonstrably innocent of the offence of which he has been convicted. Most importantly, it would be an affront to the system of justice to allow the applicant's wrongful conviction to stand in apparent conflict with the conviction of the man who is in truth the only person guilty of the offence.

Orders

For these reasons, I would grant the extensions of time necessary to allow the applicant to appeal against his conviction and to apply for leave to appeal against his sentence, allow the appeal and grant the application, set aside the applicant's plea of guilty to count 3 on indictment No 2498 of 2001, and set aside the applicant's conviction and sentence on that count. The sentences imposed in respect of the other offences of which the applicant was convicted should not be disturbed.

Footnotes

1. R v Tait [1999] 2 Qd R 667 at 668 [5]; [1998] QCA 304. ↩

2. See R v DAQ [2008] QCA 75 at [9]. ↩

3. R v GV [2006] QCA 394 at [3]. ↩

4. Meissner v The Queen (1995) 184 CLR 132 at 141; [1995] HCA 41. ↩

5. R v O (2003) 139 A Crim R 432; [2003] QCA 446. ↩

6. R v Toro-Martinez (2000) 114 A Crim R 533 at 537 – 538; [2000] NSWCCA 216 at [20] – [23]. ↩

7. R v Foster [1985] QB 115 at 125-126, 130 per Watkins and May L.JJ and Butler-Schloss J. R v Lee [1984] 1 WLR 578; [1984] 1 All ER 1080 per Ackner LJ at 584 – 585; 1085 – 1086. See also Kimmorley v Atherton [1971] Qd R 117 in which the Full Court (Douglas and Hoare JJ, Hanger SPJ dissenting) allowed appeals under s 209 of the Justices Act 1886 where the Crown accepted that the appellants had in fact not committed the offences to which they pleaded guilty. ↩

8. Criminal Code, s 671B(1)(c); R v Lee [1984] 1 WLR 578; [1984] 1 All ER 1080; R v Foster [1985] QB 115. Those decisions are not inconsistent with the principles concerning the admission of fresh evidence in an appeal after a trial: see Gallagher v R (1986) 160 CLR 392 at 397; [1986] HCA 26. ↩

9. Criminal Code, s 677. ↩