R v Mundraby [2004] QCA 493

SUPREME COURT OF QUEENSLAND

CITATION: R v Mundraby [2004] QCA 493

PARTIES: R v MUNDRABY, Dewayne Clinton (applicant/appellant)

FILE NO/S: CA No 312 of 2004 / DC No 137 of 2004

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Conviction)

ORIGINATING COURT: District Court at Cairns

DELIVERED ON: 23 December 2004

DELIVERED AT: Brisbane

HEARING DATE: 26 November 2004

JUDGES: McPherson and Jerrard JJA and Mackenzie J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Application to extend time allowedAppeal dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where appellant sought to withdraw his plea of guilty to one count of grievous bodily harm – whether plea of guilty was free and voluntary – whether failure to set aside plea would result in a miscarriage of justice / Boag v R (1994) 73 A Crim R 35, cited / Liberti (1991) 55 A Crim R 120, considered / Maxwell v The Queen (1995) 184 CLR 501, cited / Meissner v The Queen (1995) 184 CLR 132, applied / R v Hura (2001) 121 A Crim R 472, considered / R v Murphy [1965] VR 187, cited

COUNSEL: P E Smith, with P Gersten, for the applicant/appellant / R G Martin for the respondent

SOLICITORS: Terry Fisher & Company for the applicant/appellant / Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The appellant needs an extension of time to pursue this appeal against a decision of Boulton DCJ refusing him leave to withdraw a plea of guilty which he entered in the District Court at Cairns on 8 June 2004. On that date he was arraigned before White DCJ and pleaded guilty to a single count in an indictment that on 11 October 2003 he had done grievous bodily harm to Jennifer Mundraby. The allocutus was administered, but the appellant said his Sydney lawyer, whom he named, was arranging for a barrister who would be available in late July or August 2004 and, by inference, not until then. His Honour adjourned the matter to a callover on 18 June 2004 to enable a suitable hearing date to be provided for the sentencing hearing to take place. On 29 July, Mr Gertsen of counsel, who then appeared for the appellant, applied for leave to withdraw the plea of guilty, and, subject to directions about written submissions from either side, the application was adjourned for hearing before Boulton DCJ on 6 August 2004.

Before considering the law regulating the withdrawal of pleas of guilty, it is desirable to refer to the events which brought the appellant before the court. Some days before the incident giving rise to the charge, there had been a funeral for a member of the Mundraby family. The complainant Mrs Jennifer Mundraby travelled from Brisbane to Cairns to attend the funeral; but, after arriving too late for it, she went to the appellant’s house where she was invited to dinner. There was a certain amount of drinking by some of those present at the dinner, and Mrs Jennifer Mundraby later become involved in an altercation in the yard with Mr Basil Mundraby. Basil was driven home by Mrs Dulcie Mundraby; but, then or later, the complainant became involved in argument with the appellant who, like her, had been drinking. They began by pushing or shoving each other, and, on one account of the incident, she started hitting the appellant, possibly on the back of the head, with a pair of boots. Also on one version, they fell to the ground, where the struggle continued. As often happens on occasions like these, the precise sequence of events is not clear, especially to the participants themselves. Suffice to say, that in the course of the encounter the end of the complainant’s finger was bitten off, and the police were called. She was taken to hospital and the appellant was taken to the police station.

The injury sustained by the complainant was described by Dr Streatfield as “detipping proximal to the nail bed but distal to the distal interphalangeal joint”. In his report of 21 January 2004 Dr Streatfield expressed the opinion that the injury “may be consistent with grievous bodily harm … the loss of a distinct part or organ of the body”. Dr Forrest, on whom the complainant attended for treatment in Brisbane on 29 October 2003, reported that, without having seen the radiographs, he was unable to confirm that the finger was severed at the joint rather than at the shaft of the distal phalanx. He expressed the opinion that “very significant force would be required to sever a human finger in this way with human teeth, but that act is possible”. He added that he believed it would not be very likely to happen inadvertently, given the magnitude of the force required.

There can be little doubt that the injury sustained by the complainant amounted to grievous bodily harm within the relevant definition in the Criminal Code. A photograph of the complainant’s injured finger, which we have viewed on appeal, shows that most if not all of the final phalanx of the index finger is missing. When interviewed by the police at 5.30 am on 12 October 2003, the appellant said that the incident was “a blur”, but -

“I remember (ui) sort of pulling in my face (ui) had her finger in my mouth and everything else and still smacking me from behind the back of the head, and I don’t know and I sort of like just pulled away I suppose I well I, I suppose I did bite her finger.”

He added that he did not remember her finger being inside his mouth; but remembered trying to pull away, at the same time indicating a movement of his head to the right. I consider it a fair interpretation of what he said in the record of interview that, although unable to recall exactly what had happened, he sufficiently admitted to having bitten off the now missing piece of the complainant’s finger. There was in fact no other reasonable explanation of what had happened. He was concerned to stress that he had no intention or “anticipation” of what he did.

Occasioning grievous bodily harm is, however, not an offence of which intention forms an element. It is nevertheless subject to other provisions of the Code, such as s 23 and s 271. Section 23(1)(a) exculpates or excuses an act that occurs independently of the will of the actor. Section 23(1)(b) excuses an event that occurs by accident. Having regard to what was said and decided by this Court in R v Taiters, ex parte Attorney-General [1997] 1 Qd R 333, there was no perceptible scope for the application of s 23(1)(b) in the circumstances of this case. An ordinary person in the position of the appellant would have foreseen the possibility that, if he bit the complainant’s finger hard enough, he might sever the end of it, or at least inflict serious and permanent injury to it. Under s 23(1)(a), like s 23(1)(b), the onus is on the prosecution to displace the provision once it is fairly raised on the evidence; but, even if that were so here, biting the complainant’s finger with the degree of force required to sever it through the bone or at the joint was not an action that is capable of taking place involuntarily. Dr Forrest’s opinion of 29 October 2003 is sufficient to establish that to be so.

The appellant might perhaps have hoped to fare slightly better if he had gone before a jury relying on s 271 of the Code. Section 271(1) makes it lawful for a person confronted by an unprovoked assault to use force against his assailant to make effectual defence against the assault. The operation of the subsection is, however, subject to the condition that the force not be likely to cause grievous bodily harm. Here, the force used by the appellant was likely to, and did in fact, have such an effect. Section 271(1) was therefore not available to the appellant. Section 271(2) makes it lawful to use any such force, extending to causing grievous bodily harm, if there is believed to be no other way of defending oneself. The provision sets up a standard of belief which is wholly or partly subjective to the wrongdoer: see R v Gray (1998) 98 A Crim R 589. The problem for the appellant is, however, that the operation of s 271(2) is predicated upon the nature of the assault against which self-defence is offered being such “as to cause reasonable apprehension of death or grievous bodily harm”. With one qualification to be mentioned, there is no indication in the circumstances of this case that the nature of the assault or anything done by the complainant was such as to raise a reasonable apprehension of grievous bodily harm to him. On that footing, s 271(2) was not available to the appellant as an answer to the charge against him of occasioning grievous bodily harm.

The qualification arises from a suggestion that, in the course of her assault upon the appellant, the complainant “began to poke or gouge at [the appellant’s] eyes”. Such action might be capable of giving rise to a reasonable apprehension that the appellant was confronted with action on her part that threatened him with grievous bodily harm. If so, the Crown would bear the onus of displacing any reasonable doubt about it. Unfortunately, the evidence required to raise it sufficiently to enable it to be put to a jury is completely lacking in the material before Bouton DCJ, as it is before us on appeal The passage which I have quoted does not form part of any affidavit, statement, record of interview or testimony before his Honour as the primary judge. It first made its appearance in the written outline dated 30 July 2004 submitted on behalf of the appellant by Mr Gertsen of counsel in accordance with the judge’s directions given on 29 July 2004.

At the hearing before Boulton DCJ on 6 August 2004, an affidavit by the appellant was filed and read on his behalf, together with the written application to withdraw the plea of guilty. The affidavit makes no reference to the complainant having poked or gouged at the appellant’s eyes. Nor did he say anything resembling it in the course of his record of interview with the police on the morning of 12 October 2003. When asked about it in cross-examination before Boulton DCJ on 6 August, the appellant claimed he had told the police about being gouged or poked in the eyes when he was first handcuffed and taken to the police vehicle; and also when they got to the police station before the electronic recording system was switched on. He also said he had advised Mr Magoffin about it. Mr Magoffin was a solicitor from a Cairns firm who had at some time before 5 January 2004 received instructions from the appellant to act for him in relation to the charge. Those instructions were later terminated in the course of a telephone call received by Mr Magoffin on 2 June 2004. On that occasion, the appellant told him that he was getting other advice and was going to contest the charge. This accords in part with what the appellant told White DCJ on 8 June, which was that he had spoken to a Mr Kim Nelson of a Sydney-based firm of lawyers who was arranging for a barrister to see the appellant that day. Mr Magoffin in his evidence before Boulton DCJ said that the appellant came to see him late in the afternoon of the day before 8 June 2004, on which occasion Mr Magoffin advised the appellant that his firm would be withdrawing as solicitors on the record. Mr Magoffin was cross-examined briefly by counsel for the appellant at the hearing before Boulton DCJ on 8 August 2004; but not about any of the details recounted here. The appellant said in evidence that there was a late conference with Mr Magoffin; but it was about fees, which seems correct if the instructions were terminated.

Before his instructions were terminated on 2 June 2004, Mr Magoffin had acted for the appellant in the committal proceedings, at which, he said in evidence, there was a good deal of cross-examination of police officers about whether there were any other statements from the appellant apart from those which were electronically recorded; and “a lot of time” was spent on establishing the various incidents of aggressive behaviour on the part of the complainant leading up to the assault. By then, Mr Magoffin had spoken to Dr Forrest and knew his opinion. On behalf of the defence, efforts at committal were directed to eliciting matters that might relate to any possible defences, of which, Mr Magoffin said, self‑defence was “a potential issue that might arise”. Asked in chief about instructions concerning assaults on the appellant, and specifically about eye-gouging, Mr Magoffin said he did not know there was any great detail about that, and that there was “not too much instruction about injuries that he received”. He recalled there had been forensic examinations made by the police. This may have been a reference to the fact that in the course of the record of interview, the police had asked the appellant whether he had got any injuries at all from the complainant, to which he responded that “you can’t see any physical injures”. Earlier in the interview he had said “obviously there’s no marks on my face”. There was no attempt at the hearing to cross-examine Mr Magoffin about the appellant’s assertion that he had told Mr Magoffin about the alleged eye-gouging or poking him in the eye. In these circumstances, there was simply no evidence from the appellant or any other source suggesting that he had bitten the complainant’s finger because she had been inflicting grievous bodily harm on him, or that he reasonably apprehended that she was about to do so.

It follows that no case of self-defence under s 271(2) of the Code was available to the appellant. By the time his instructions were terminated on 2 June 2004, Mr Magoffin had received from the appellant no information that suggested or would have given rise to a matter of defence to the charge with which he was faced. When Mr Magoffin appeared at court on 8 June 2004, it was to seek leave to withdraw from the record as solicitor for the appellant. He said he had a discussion with the appellant outside the court on that occasion in which he confirmed that he would not be acting for the appellant any further. At that stage the matter was still listed for trial on 21 June 2004. Asked in cross-examination, he agreed it was fair to say that he had not had the opportunity to fully discuss the defence of self-defence with the appellant. His instructions were terminated almost a week before he heard the appellant plead guilty in court on 8 June. Mr Magoffin said he did not advise him to plead guilty, and would have obtained his instructions in writing for that plea if he had still been acting for him. His Honour accepted this evidence of Mr Magoffin and rejected the suggestion in para 8 of the appellant’s affidavit that Mr Magoffin had told him that he did not have any defence.

After pleading guilty on 8 June 2004, it remained open to the appellant to apply to the court for leave to withdraw his plea. See Maxwell v The Queen (1995) 184 CLR 501, 509-510, 522, where it was said that a plea may with leave be withdrawn at any time before sentencing has taken place. Even now the appellant has not been sentenced. To obtain such leave it was and is incumbent on the appellant to show that a miscarriage of justice has occurred or would occur if he was not allowed to withdraw his plea. See Boag (1994) 73 A Crim R 35, 36-37. No doubt the circumstances capable of amounting to a miscarriage of justice in this context are not to be restricted or circumscribed; but it has been held that they must be such as to indicate that the plea of guilty was “not really attributable to a genuine consciousness of guilt”: see R v Murphy [1965] VR 187 (Sholl J); Boag, at 37 (Hunt CJ at CL). That follows logically from the fact that a plea of guilty is regarded as full confession in open court after being formally arraigned or charged with the offence. “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 sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea”: Meissner v The Queen (1995) 184 CLR 132, 141.

To say that a plea of guilty will be set aside when it is shown that it was “not really attributable to a genuine consciousness of guilt” is to place on the applicant the onus of proving a negative, which in practice can only be discharged by establishing that something other than a consciousness of guilt impelled or induced him to enter that plea; that is to say, by showing some other reason enabling it to be said that the plea is not so attributable: R v Murphy, above. There is no suggestion here that the appellant was motivated to plead guilty in consequence of any fraud, compulsion, threats or other impropriety by or on the part of any other person. In para 7 of his affidavit he says that he did so because he believed “on the basis of what my then solicitor told me that, if I did not, I would receive a jail sentence”. Whether Mr Magoffin in fact advised him in precisely those terms or at all seems unlikely; but if he did, it was, as a prediction of the likely consequences, probably an accurate assessment.

The appellant also says in para 7 of his affidavit that he does “not know the law, and relied on what my previous solicitor told me”. It is not altogether accurate to say that the appellant does not know the law. In the police interview he said he had two degrees; in the written submissions on his behalf at the hearing, it is stated that he is university educated and holds a Bachelor of Arts degree in Justice Studies from Queensland University of Technology. This may explain his evident familiarity with concepts such as “intention’ and “gbh” which he himself referred to in the police interview. He is an Aboriginal man aged 32 years, who is employed as Head of Exploration and Mining at the North Queensland Land Council at Cairns. There is no reason to suppose that he does not appreciate the significance of a plea of guilty; or, for that matter, more specifically the significance of the plea of guilty or its consequences which he entered to the charge of occasioning grievous bodily harm to Mrs Jennifer Mundraby in the District Court at Cairns on 8 June 2004. The consequence of his doing so was that he became liable to be sentenced for that offence. On that occasion it was made clear to him that sentencing would follow on a date to be fixed by reference to his Sydney solicitor or barrister at a further mention of the matter on 18 June, which the appellant was required to and did attend in person. The matter was on that date adjourned for sentence on 29 July 2004. It was not until then that application was made or foreshadowed by Mr Gertsen of counsel to vacate the plea of guilty entered almost two months previously.

In any event, I am not persuaded that the principle is that a plea of guilty must be set aside if the person entering it did not have a full and informed understanding of the applicable law as distinct from a knowledge of the facts constituting the offence. If it were so, there would be few pleas of guilty that, after inquiry, would not be set aside. The myriad of minor offences to which guilty pleas are entered without first receiving competent legal advice would all be liable to be vacated. We have not been referred to any considered decision that lays down so broad a rule. Liberti (1991) 55 A Crim R 120 is not such a case. It was one in which the statement of facts placed before the sentencing judge should, it was held, have alerted him to the fact that the appellant was pleading guilty to “possession for supply” of a drug when all that he had done was “mind” the drug temporarily for a friend. Kirby P (at 121-122) said that, notwithstanding a guilty plea, an appeal would be allowed if it appeared (a) that the appellant did not appreciate the nature of the charge or did not intend to submit that he was guilty of it; or (b) that, upon the admitted facts, could not in law have been convicted of the offence charged.

As I understand it, Liberti fell within the second classification (b). Here the appellant falls within neither of the two categories. He was aware that he was being charged with having bitten off Mrs Jennifer Mundraby’s finger, and of having caused the consequences which that act involved. It needed no legal acumen to understand that that was the nature of the charge against him. Nor did he need to be versed in the law to recognise that in circumstances like those, he might conceivably have a defence to the charge if in doing it he was simply trying to protect or defend himself. Most laymen are quick to assert that that was no more than what they were doing when charged with injuring another. The appellant has still not produced admissible or reliable evidence that he needed to bite through the complainant’s finger in order to save himself from having his eye gouged. There is, in short, nothing to suggest that the reason why he entered a plea of guilty when arraigned on 8 August 2004 was not that he was conscious of his guilt of the offence of occasioning grievous bodily harm.

There has been no miscarriage of justice in this case. In my opinion, the learned judge was correct in deciding not to set aside the appellant’s plea. The application to extend time should be allowed but the appeal must be dismissed.

JERRARD JA: In this appeal I have had the benefit of reading the reasons for judgment of McPherson JA and Mackenzie J and respectfully agree with those and the orders proposed. I add the following comments.

The learned trial judge was not shown to be in error in refusing Mr Mundraby leave to withdraw his plea of guilty, for the reason that no material was put before that judge to suggest that Mr Mundraby actually had any arguable defence. Nor was there any evidence or other information before that judge which fairly raised for consideration that a conviction on Mr Mundraby’s plea of guilty would result in a miscarriage of justice.

The learned judge was told that Mr Mundraby’s solicitor had warned Mr Mundraby that a defence of accident was unlikely to succeed. The solicitor’s recollection was that he told Mr Mundraby that “a jury would see the nature of the injury and that it could cause some difficulties with them in accepting that it was something that didn’t require a lot of force and persistent force”. That was realistic advice.

The solicitor did not say he had discussed a possible defence of self defence with Mr Mundraby, but for the reasons explained by McPherson JA, there was no evidence before the learned judge of any facts which would support that defence.

This court was referred to the observations of Kirby P (as His Honour then was) in Liberti (1991) 55 A Crim R 120 at 121–122, cited by McPherson JA herein. Kirby P also added that:

“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to 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 an admission by that person of the necessary legal ingredients of the offence.”

Those remarks are relevant to Mr Mundraby’s application to set aside his plea. To cite from what Hunt CJ at CL wrote in Boag v R (1994) 73 A Crim R 35 at 39, all that has happened is that a different lawyer has given Mr Mundraby more favourable advice as to a jury’s likely reaction to (the evidence) than Mr Mundraby was given by his solicitor before he made his plea of guilty. He knew before he attended court that day that he would be asked how he pleaded. Again to cite from Hunt CJ at CL in Boag, it is clear that Mr Mundraby made a deliberate and informed choice to plead guilty at that time.

In R v Hura (2001) 121 A Crim R 472 at 478 Spigelman CJ, giving the judgment of the Court of Criminal Appeal (NSW) wrote that a number of circumstances have been identified as causing a miscarriage of justice and in which that court would set aside a conviction following a plea. Those included:

where the appellant did not appreciate the nature of the charge to which the plea was entered;

where the plea was not a free and voluntary confession;

the plea was not really attributable to a genuine consciousness of guilt;

where there was mistake or other circumstances affecting the integrity of the plea as an admission of guilt;

where the plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt;

the plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt;

if the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt.

The learned Chief Justice cited authority for each identified circumstance. I respectfully observe that the references, in the third and seventh of those identified circumstances, to a plea entered where there was not a genuine consciousness of guilt, that being a circumstance identifying a miscarriage of justice which justifies setting aside a plea, is very difficult to reconcile with the observation in the joint judgment in Meissner v The Queen (1995) 184 CLR 132 at 141 cited by Mackenzie J. The majority held that there is no miscarriage of justice where a court acts on a plea entered by a person not in truth guilty of an offence, who entered the plea in open court when of full age, apparently of sound mind and understanding, and in the exercise of a free choice in the interest of that person. I do not understand how such a person, not guilty of the offence, could have any consciousness of guilt or be conscious of anything except innocence. However, as McPherson JA demonstrates in his analysis, Mr Mundraby did not establish that his plea was not really attributable to a genuine consciousness of guilt.

MACKENZIE J: I agree with what McPherson JA has written. I only wish to comment further on one aspect of the matter. The court has a discretion to allow a plea of guilty to be withdrawn. In Meissner v The Queen (1995) 184 CLR 132, 141 Brennan, Toohey and McHugh JJ said:

“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. 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. ”

Dawson J, whose dissent as to the outcome of the appeal does not affect the validity of the following statement of principle, said, at 157:

“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. 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.”

As the test applicable to this appeal is whether there will be a miscarriage of justice if the court acts on the plea of guilty, it is for the applicant to establish that proposition. The transcript of the hearing of the application below suggests that, on one aspect of the application, the approach on the appellant’s behalf was that it was sufficient to state that he had been advised that he had potential defences of accident and self defence without descending to the specifics of the evidence which may support the claim, and by resisting endeavours by the respondent to test the genuineness of a version of the facts which appeared to be what was relied on, was not sworn to directly in the application and which apparently varied from what was said in the record of interview. Nor was there any agreed statement of facts. Certain assertions of fact in the appellant’s outline of argument were not accepted by the respondent.

In a case like the present where the application was based on the proposition that, having taking advice after the plea of guilty was entered, the appellant believes that there may be defences available, it is of little assistance to base the application merely on an assertion that the defences may be available. It was, in the context of this case, necessary to support the basis of the claim by sworn evidence, even if that may have a tendency to reveal instructions and details of evidence that, had the plea of guilty not been made, might not have to be revealed before trial.

Lest that approach be thought to rely on an unduly technical view of what was necessary, I am in agreement that, on the assumption that the nature of the proposed defences can be gleaned indirectly from the evidence below, McPherson JA has demonstrated that there would be no miscarriage of justice if the plea were acted on. I agree with the order proposed by him.