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8
Court of Criminal Appeal 8 November 2005

Regina v Stephen John RAE (No 2)

[2005] NSWCCA 380

Also reported as (2005) 157 A Crim R 182
Assault & violencePublic order & justice offences
PLEA OF GUILTY APPLICATION TO WITHDRAW PLEA APPLICATION WITHDRAWN CONVICTION AND SENTENCE APPEAL AGAINST CONVICTION AND SENTENCE CONVICTION APPEAL ABANDONED

Citation: Regina v Stephen John RAE (No 2) [2005] NSWCCA 380
Court: New South Wales Court of Criminal Appeal
Date: 8 November 2005
Judge(s): Giles JA; Hislop J; Rothman J

Background

The applicant had pleaded guilty in the District Court in October 1999 to causing grievous bodily harm with intent to murder, arising from a deeply serious attack on a former partner. He had poured petrol over the victim at her home and set her alight. He was sentenced to 19 years and 8 months imprisonment with a minimum term of 14 years and 9 months, with a further offence of occasioning actual bodily harm taken into account on a Form 1.

The applicant initially appealed both conviction and sentence. He abandoned the conviction appeal before it was heard. The sentence appeal proceeded and was dismissed by the Court of Criminal Appeal in December 2001.

In late 2003, the applicant, unrepresented, filed a series of documents seeking in substance: (a) leave to withdraw his abandonment of the conviction appeal, or alternatively an extension of time to file a fresh conviction appeal; and (b) leave to reopen the sentence appeal. The applications were supported by extensive affidavit material, press articles, correspondence and other documents.

  • Whether the applicant could withdraw the abandonment of his conviction appeal, or alternatively file a fresh conviction appeal out of time
  • Whether, assuming a conviction appeal could proceed, the guilty plea gave rise to a miscarriage of justice
  • Whether the sentence appeal could be reopened
  • Whether, if the sentence appeal could be reopened, any ground for reopening was made out
  • Whether the applicant was denied procedural fairness in the conduct of the sentence appeal

Decision

Conviction appeal and guilty plea

The Court found it unnecessary to decide the threshold question of whether the applicant could formally revive the abandoned conviction appeal or bring a fresh one. Instead, the Court assumed in the applicant's favour that such an avenue was open and proceeded to consider whether the guilty plea had produced a miscarriage of justice. The applicant raised numerous grounds, including that his plea was not made freely or voluntarily, that he lacked the requisite intent to murder, and that various aspects of the factual basis for sentencing were incorrect.

The Court was not persuaded. The only realistic defence available at trial had been absence of intent to murder, and that was not a strong case on the facts. The applicant's plea had been entered with legal representation and after proper advice. No miscarriage of justice from reliance on the plea was established.

Sentence appeal

The Court held that the sentence appeal, having been heard and dismissed, could not be reopened. Even proceeding on the assumption that reopening was theoretically possible, the Court found no sufficient ground had been made out. The applicant's complaints included that he had been denied procedural fairness because he had expected fresh psychiatric evidence to be introduced at the appeal hearing and because he had wished to address the Court personally. The Court rejected both complaints. The applicant had been represented by counsel throughout, and any decisions made by counsel about the conduct of the appeal did not constitute a denial of procedural fairness to the applicant, even if those decisions differed from his own wishes. The Court also rejected grounds concerning the adequacy of preparation time and the use of unsworn evidence at sentencing.

Orders Made

  • Applications dismissed.

Key Takeaways

  • In dismissing both applications, the Court of Criminal Appeal confirmed that a sentence appeal, once heard and determined, cannot simply be reopened: finality of appellate proceedings is a significant obstacle to relitigation.
  • Where a conviction appeal has been abandoned, the question of whether it may be revived or a fresh appeal filed may be left open if the application fails on substantive grounds in any event.
  • A guilty plea does not produce a miscarriage of justice merely because the applicant later disputes the facts or the wisdom of the plea, particularly where legal advice was provided and the plea was entered voluntarily.
  • Decisions made by legal representatives in the conduct of an appeal do not, of themselves, constitute a denial of procedural fairness to the client, even where the client disagreed with the approach taken.
  • The sentencing court was entitled to act on unsworn evidence in the absence of dispute, and no error arose from proceeding to sentence without requiring sworn expert evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 59

Cases cited:
- Grierson v The King (1938) 60 CLR 431
- Jones v The Queen (1989) 166 CLR 409
- Lawless v The Queen (1979) 142 CLR 659
- Meissner v The Queen (1995) 184 CLR 132
- R v Abu-Chabake [2004] NSWCCA 356
- R v Bell (1987) 8 NSWLR 311
- R v Birks (1990) 19 NSWLR 677
- R v Cartwright (1989) 17 NSWLR 243
- R v Chiron (1980) 1 NSWLR 218
- R v Davies (1993) 19 MVR 481
- R v Khan [2002] NSWCCA 521
- R v Murphy (1965) VR 187
- R v Rae [2001] NSWCCA 545
- R v Reardon (No 2) (2004) 60 NSWLR 454
- R v SL [2004] NSWCCA 397
- R v Suresh (1998) 153 ALR 145
- R v Toro-Martinez (2000) 114 A Crim R 533
- R v Wilkes (2001) NSWCCA 97
- Ratten v The Queen (1974) 131 CLR 131
- TKWJ v The Queen (2002) 212 CLR 124
- Wong v Director of Public Prosecutions [2005] NSWSC 129