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Court of Criminal Appeal 14 February 2002

R v Bayliss [2002] NSWCCA 11 revised - 25

[2002] NSWCCA 11

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE PLEA OF GUILTY DUTIES OF LEGAL ADVISORS PLEA OF GUILTY NOT IMPROPERLY OBTAINED.

Citation: R v Bayliss [2002] NSWCCA 11 revised – 25/09/2002
Court: NSW Court of Criminal Appeal
Date: 14 February 2002
Judges: Wood CJ at CL, Sully J, Dowd J

Background

The applicant was convicted in the District Court at Gosford on 28 February 1994 after entering a guilty plea to one count of indecent assault on a person under the age of 16. Two related matters were taken into account on a Form 1. The sentencing judge indicated a term of periodic detention of nine months, and that sentence was imposed following the plea.

The applicant did not file his notice of appeal until 25 September 2001, more than seven years after the conviction. Because the Criminal Appeal Act 1912 (NSW) requires appeals to be lodged within time, he required the Court to grant an extension before any appeal could be heard.

The applicant contended that his guilty plea had been improperly obtained. He alleged his legal representatives had pressured him into pleading guilty, had failed to properly investigate an alibi, and had generally acted incompetently or conspired against his interests.

  • Whether the Court should grant an extension of time to appeal, given the lengthy and unexplained delay of approximately seven years.
  • Whether the guilty plea had been improperly obtained through pressure from the applicant's legal representatives.
  • Whether the applicant's legal representatives had acted incompetently, including in relation to the alibi investigation.
  • Whether there was any tangible risk of a miscarriage of justice sufficient to warrant granting the extension.

Decision

The Court examined in detail the circumstances surrounding the plea on 28 February 1994. A sentence indication hearing was sought after the Crown offered to accept a plea to one count. The applicant's legal representatives gave evidence, corroborated by signed written instructions from the applicant himself, that he had initially declined the offer, then changed his position and expressly requested the sentence indication hearing.

The Court preferred the evidence of the applicant's legal representatives over that of the applicant and his parents. The signed written instructions were treated as significant corroboration. The Court found that the sentence indication procedure had been properly explained to the applicant, that the hearing was held at his request, and that his subsequent guilty plea reflected a considered decision rather than one extracted through improper means.

On the alibi question, the Court found that the legal representatives had acted correctly throughout. Before the Crown narrowed the alleged offending to a specific date, a formal alibi notice was not possible. Once the date was identified, counsel and solicitor appropriately investigated it and gave accurate advice about the potential consequences of a late or false alibi notice.

The Court found no acceptable explanation for the seven-year delay in filing the notice of appeal. Combined with the absence of any demonstrated miscarriage of justice, this led the Court to refuse the extension of time and dismiss the appeal.

Orders Made

  • Application to extend the time for filing the notice of appeal refused.
  • Appeal dismissed.

Key Takeaways

  • A guilty plea is not improperly obtained merely because legal representatives gave forthright advice about the likely consequences of proceeding to trial, including the potential for a custodial sentence.
  • Signed written instructions from a defendant, recording a change of position and a request for a sentence indication hearing, can constitute strong corroboration of the account given by legal representatives where that account is disputed.
  • Where a defendant alleges pressure or incompetence by legal representatives, the court will assess the credibility of competing accounts and may prefer the account of those representatives where it is internally consistent and documented.
  • In dismissing the application, the Court confirmed that an unexplained delay of seven years in filing a notice of appeal will weigh heavily against any grant of an extension of time, particularly where no miscarriage of justice is demonstrated.
  • An alibi investigation need only encompass a sufficiently defined date or period; where the Crown has not yet particularised the date of offending, the absence of a formal alibi notice does not necessarily indicate incompetence by defence lawyers.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 10(1) and 10(3)

Cases:
- Meissner v The Queen (1995) 184 CLR 132
- Regina v Boag (1994) 73 A Crim R 35
- Regina v Brehoi [1999] NSWCCA 113
- Regina v KCH [2001] NSWCCA 273
- Regina v Lawrence [1980] 1 NSWLR 122
- Regina v Liberti (1991) 55 A Crim R 120
- Regina v O'Donahue (1988) 34 A Crim R 397
- Regina v Ross (NSWCCA, 20 April 1994)
- Regina v Young [1999] NSWCCA 275