R v Ogborne [2006] QCA 161

Director of Public Prosecutions (Queensland) for respondent

THE PRESIDENT: Justice Keane will deliver his reasons first.

KEANE JA: On 2 March 2005 the applicant was convicted upon his own plea of guilty for the manslaughter of Gary Allan Rieck on 9 April 2002. The allocutus was administered on that date. On 12 August 2005 the applicant was sentenced to 14 years imprisonment. The applicant sought leave to appeal against that sentence and that application was brought within time, but it has not yet been heard.

On 31 August 2005, the applicant sought to appeal against his conviction on the basis that he had been induced to plead guilty by reason of poor advice or misrepresentation by the lawyers who were acting for him at that time. On 8 September 2005 he filed an application for an extension of time in that regard. That application was listed for hearing before this Court on 7 December 2005 on which date it was adjourned at the applicant's request to allow him to obtain and file affidavit material in support of his attempt to have his conviction set aside.

The application for an extension of time came on for hearing again on 10 February 2006. On that occasion the applicant was again not ready to proceed with the application. The applicant asserted that he would be able to file affidavit material casting doubt upon his guilt given some further time. The Court, "with grave misgivings", allowed the applicant a further adjournment.

Today is the third time this application has come on for hearing before this Court. No affidavit or other material has been filed on behalf of the applicant save for some submissions provided on 2 May 2006.

The applicant says that his former legal representatives "pushed" him to sign a guilty plea to manslaughter when he was unable to read what he was signing, because he did not have his spectacles and was given only two minutes to make this important decision.

It should be noted that the applicant had discharged his legal representatives before he was sentenced. On that occasion he asserted that he had been wrongly advised to plead guilty and had been put under pressure to do so. He said that he had no involvement in the death of the deceased.

The learned sentencing judge disregarded these assertions, noting that the applicant had not applied to withdraw his plea of guilty, and proceeding on the basis that the applicant's plea of guilty was regularly entered.

The applicant alleged again, in his application for an extension of time to challenge his conviction, that he had been wrongly pressured into agreeing to plead guilty to the manslaughter of the deceased.

The respondent obtained an affidavit from Matthew Fairclough, the applicant's former solicitor. This affidavit was filed in January 2006. In that affidavit, Mr Fairclough swore that he was engaged to represent the applicant at his trial which was due to commence on 1 March 2005. At that time, the applicant was charged with his co-accused, Leanne Myra Shales, with the murder of the deceased. The applicant's instructions were that he wished to plead not guilty to murder. Mr Fairclough said that, in a number of pre-trial conferences with the applicant and his counsel, the question whether the applicant should give evidence was discussed. The applicant's instructions were that he had not wished to give evidence. He signed written instructions to that effect.

On 1 March 2005, the learned trial judge ordered that the applicant and Shales be tried separately. The applicant's trial was then due to commence on the following day. After the trial Judge's ruling, the Crown Prosecutor and the applicant's legal representatives conferred. The Crown Prosecutor intimated to the applicant's legal representatives, that the Crown might be willing to accept a plea of guilty to manslaughter in discharge of the indictment.

Mr Fairclough, the applicant's counsel, and the applicant then conferred at about midday. The applicant was told that no guarantee of an acquittal could be given to him. The Crown case was supported by the evidence of Richard Hoare who had stated that he had been called to premises at Riverview on the evening of 9 April 2002. There, Hoare said he had found the applicant, Shales and the body of the deceased. The applicant admitted to Hoare that he had killed the deceased.

The Crown also relied on admissions made by the applicant in interviews with police that he had been in the house on the evening in question and that he had argued with the deceased on that evening. The applicant's counsel told the applicant, that although the credibility of Hoare's version of events had been weakened at the committal, it was possible that the jury could accept Hoare's evidence. There was then some discussion of the possible sentences for manslaughter. The applicant was told that he could receive 10 years for manslaughter with a serious violent offender declaration, and that this sentence would be imposed cumulatively on a sentence which the applicant was already serving.

The applicant was told that if he was convicted of murder, then the only sentence that could be imposed was life imprisonment. The applicant was, at this stage, undecided as to his course of action. He was told that if the Crown was willing to accept a plea of guilty to manslaughter, a decision would have to be made before court commenced on the following day, otherwise the trial would proceed.

That afternoon Mr Fairclough received a telephone call from an officer of the Director of Public Prosecutions to the effect that the Crown was willing to accept a plea of manslaughter. Mr Fairclough then prepared a document for signature by the applicant in the event that he wished to plead guilty to manslaughter. That document recorded, inter alia that,

"I have been informed that whilst it is always up to a sentencing Judge to decide what sentence should be imposed, it is unlikely that I would receive a sentence of more than 12 years and that the sentence might be 10 years...I am further aware that if a sentence is 10 years or more an automatic serious violent offence declaration will be made and I will have to serve 80% of that sentence. I am aware that I have a right to have a trial before a Judge and jury in relation to my case and maintain my plea of not guilty... I understand that no one has taken away from me my right to proceed to trial. I say that I wish to plead guilty to the charge. I understand that with this decision I am taking to have accepted the evidence of Hoare, namely that I unlawfully killed [Rieck] but that I had no intent to do so...By giving these instructions to plead guilty I do so of my own free will and say that no threat, promise or inducement has been made or held out to me by any person to make me plead guilty. I have had these instructions read to me and understand their contents. I confirm that I have had the opportunity of considering these matters overnight and do not require any further time in which to make this decision.".

On 2 March, before the trial recommenced, the applicant conferred again with his legal representatives. The applicant said that he would plead guilty to manslaughter. Mr Fairclough read the document referred to in the preceding paragraph to the applicant and the applicant signed the document. The applicant has not adduced any evidence disputing Mr Fairclough's version of events. There is no reason to doubt the accuracy of Mr Fairclough's account. The barrister engaged to act on behalf of the applicant has also sworn an affidavit which confirms Mr Fairclough's evidence.

On the hearing of this application, the applicant chose not to seek to dispute the evidence of Mr Fairclough and his former barrister. This Court may, therefore, proceed confidently on the basis that Mr Fairclough's evidence is to be accepted as accurate. In these circumstances the applicant has not demonstrated any possibility that some unfairness attended the entering of the plea of guilty such as would suggest that a miscarriage of justice has occurred. See for example, Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 141; R v Gadaloff [1999] QCA 286 at [5]. In the light of Mr Fairclough's evidence it can clearly be seen that the applicant was subjected to no pressure of any kind to plead guilty. He had every opportunity fully to understand the circumstances relevant to his decision. It is clear to this Court that the applicant's plea of guilty was freely entered.

The applicant has not brought forward any reason to doubt the reliability of his plea of guilty. The applicant has sought to criticise the reliability of the witnesses who might have given evidence against him. But because the applicant pleaded guilty, the Crown was not obliged to rely on that evidence and as a result the applicant's criticisms of the Crown witnesses are irrelevant. His plea of guilty is the "most cogent admission" of guilt that can be made. See R v Sagiv (1986)

22 ACrimR 73 at 81, and R v Gadaloff [1999] QCA 286 at [5].

In the circumstances, the prospects of success of any appeal against conviction are, in my view, non-existent. The grant of an extension of time would be futile. In my opinion, the application for an extension of time should be dismissed.

THE PRESIDENT: I agree the application should be refused for the reasons given by Justice Keane. I add only these brief observations.

Were Mr Ogborne given an extension of time to appeal against his conviction, having entered a plea of guilty to manslaughter, he could only succeed in his appeal if the entering of that plea of guilty constituted a miscarriage of justice.

Mr Ogborne is a mature man, 46 at sentence. He had extensive experience in the criminal courts. His criminal history extends over five pages and included appearances in the Magistrates and District Courts in Queensland and in local courts in New South Wales. He appealed against one conviction to this Court on 7 March 2003. He is plainly aware of his rights and prepared and able to assert them when he chooses.

Affidavits from his former lawyers, which have not been challenged and the contents of which I accept, show that he voluntarily decided to plead guilty after obtaining sound legal advice from his lawyers. He knew he could go to trial and risk a conviction for murder but he was not prepared to take that risk. His instructions to his lawyers to that effect were read over to him before he signed them. In the light of that background, his optometrist's statement about him not having reading glasses at the time is of no avail.

Mr Ogborne has not established that his plea of guilty was not a voluntary plea made in the exercise of a free choice in his interest. Indeed, the evidence all is to the contrary. As Brennan, Toohey and McHugh Js said in Meissner v. The Queen [1995] HCA 41; (1994) 184 CLR 132 at 141:

"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."

Argument or advice that seeks to persuade an accused to plead guilty is not improper conduct, no matter how strongly the argument or advice is put: Meissner at 143 and 149.

As Justice Keane has demonstrated in his reasons, the prosecution case against Mr Ogborne was strong. There was a real chance that had he proceeded to trial on murder he may have been convicted of it.

Mr Ogborne does not have any real prospects, on the material before this Court, in succeeding on any appeal against conviction so that it is futile to grant his application for an extension of time in which to do so.

MUIR J: I agree with the reasons of Justice Keane and the President and also with the order proposed.

THE PRESIDENT: The application for an extension of time to appeal against conviction is refused. Mr Ogborne, you should now assist your lawyers in preparing your application for leave to appeal against sentence.

CORRIGENDUM: The judgment referred to "9 April 2002". The reference should read "10 April 2002".