New South Wales Court of Criminal Appeal CITATION : R v Hesford [2002] NSWCCA 525 FILE NUMBER(S) : CCA 60096/02 HEARING DATE(S) : 18/12/02 JUDGMENT DATE : 18 December 2002 PARTIES : Regina v Philip Mark Hesford JUDGMENT OF : Mason P at 36; James J at 1; Dunford J at 37 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/71/0046 LOWER COURT JUDICIAL Patten DCJ OFFICER : COUNSEL : In Person GIO Rowling SOLICITORS : - SE O'Connor DECISION : Extension of time in which to apply for leave to appeal against sentence refused IN THE COURT OF CRIMINAL APPEAL 60096/02 MASON P JAMES J DUNFORD J WEDNESDAY 18 DECEMBER 2002 REGINA v PHILIP MARK HESFORD Judgment 1 JAMES J: Philip Mark Hesford ("the applicant" or "Mr Hesford") has applied for an extension of time in which to appeal against conviction and to apply for leave to appeal against sentence and, if an extension of time is granted, appeals against a conviction and applies for leave to appeal against the sentence imposed as a result of that conviction. Mr Hesford has appeared in person before the Court of Criminal Appeal. 2 On 18 July 2001 the applicant pleaded guilty in the Griffith District Court before his Honour Judge Patten to one charge of breaking and entering a dwelling house on 5 February 2001 with the intent to commit a serious indictable offence, namely, assault occasioning actual bodily harm, which is an offence under s 113(1) of the Crimes Act, for which the maximum penalty is imprisonment for ten years. 3 The matter had been mentioned in the Griffith District Court on 16 July 2001 and had then been adjourned to 18 July. The applicant spent the period between 16 and 18 July in custody at the Junee Correctional Centre. On the mention on 16 July the applicant was represented by a solicitor Mr Alvaro. In the proceedings on 18 July the applicant was represented by a barrister Mr M Smith, who was instructed by Mr Alvaro. 4 On 18 July 2001 Judge Patten sentenced the applicant to imprisonment for a term of two years to commence on 18 July 2001, the date of sentencing, and suspended that sentence, except for one month to commence on 18 July 2001, on condition that the applicant enter into a good behaviour bond for a term of two years, subject to conditions that: (a) he be of good behaviour; (b) he inform the Registrar of the Court of any change of address; (c) he submit himself to such treatment for his mental illness as the Probation and Parole Service of New South Wales or of Western Australia might stipulate; (d) he not approach within one hundred kilometres of the town of Griffith. 5 Judge Patten initially sentenced the applicant to a term of imprisonment of three years but reduced the term of imprisonment to two years, after it was realised that under s 12 of the Crimes (Sentencing Procedure) Act a sentence of imprisonment cannot be suspended, if the term of the sentence is more than two years. In sentencing the applicant, Judge Patten took into account that the applicant had been continuously in custody from 5 February 2001, the date of the offence, to 18 July 2001, the date of sentencing. 6 The applicant served one month of imprisonment from 18 July 2001 and was then released after he had entered into a good behaviour bond in accordance with Judge Patten's sentence. After being released, the applicant returned to Western Australia. A notice of application for an extension of time in which to appeal against conviction and to apply for leave to appeal against sentence, a notice of appeal against conviction and a notice of application for leave to appeal against sentence were lodged on 19 February 2002, that is approximately six months out of time. 7 The prosecution brief of evidence, which was admitted into evidence before Judge Patten, contained a number of statements, including statements by the applicant's divorced former wife, Mrs Julie Hesford, who was the victim of the alleged offence and who as at 5 February 2001 was living in Griffith with the four children of her marriage to the applicant; by a number of neighbours who lived close to Mrs Hesford in Griffith and who said in their statements that they had witnessed part of the assault on Mrs Hesford by the applicant; by police officers who went to Mrs Hesford's house on 5 February 2001 or who spoke to the applicant at the police station later on that day; by a police physical evidence officer; and by a doctor who examined Ms Hesford after she was assaulted. 8 Assertions made in these statements, if accepted, clearly established that the offence charged had been committed. According to these statements, on 5 February 2001 the applicant went to the house of his former wife in Griffith. The applicant knocked on the front door of the house. When Mrs Hesford answered the door she immediately recognised the applicant and closed and locked the door. She telephoned the police. The applicant gained entry to the house by pulling away the flyscreen from a partly opened window, further opening the window and then climbing into the house through the open window. After the applicant entered the house, Mrs Hesford ran out into the backyard. The applicant caught her, punched her and threatened her. Mrs Hesford engaged the applicant in conversation and went back into the house. She attempted to escape by running out the front door of the house. The applicant caught her outside the house and grabbed her by the hair, causing her to fall. While Mrs Hesford was on the ground, the applicant kicked her a number of times. Police arrived on the scene and arrested the applicant. After he was arrested the applicant declined to be interviewed by the police. 9 The part of the assault on Mrs Hesford which occurred outside the house was witnessed by a number of neighbours, who made statements. Mrs Hesford's account of what had happened was also strongly corroborated by the evidence of the police physical evidence officer who inter alia examined and photographed the damaged flyscreen and of the doctor who examined Mrs Hesford in the early afternoon of 5 February 2001 and who expressed the opinion in her statement that the injuries she observed were consistent with Mrs Hesford's explanation that she had been physically assaulted, kicked in the back, hit over the head, had had her hair pulled and her legs kicked and had been dragged about the front yard of her home. 10 The applicant was kept continuously in custody from 5 February 2001 to the date of sentencing. The applicant spent much of this time as a patient in the acute psychiatric ward of the hospital of the Department of Corrections Health Service at Long Bay. 11 I have already referred to one of the conditions of the good behaviour bond into which the applicant entered, that the applicant submit himself to such treatment for his mental illness as the New South Wales or Western Australian Probation and Parole Service might stipulate. In 1993 the applicant had suffered a cerebral haemorrhage. In the remarks he made on sentencing the applicant, Judge Patten said that the cerebral haemorrhage "has left him", that is the applicant, "with a continuing mental disability and has converted a previously law abiding and good family man, husband and father into a person whose delusions and poor impulse control have led to him committing a crime which brings him before the court." 12 In his remarks on sentence his Honour referred to reports by Dr Misrachi and Dr Nielssen of the Corrections Health Service. In his report of 12 April 2001 Dr Misrachi dealt with a number of matters. Dr Misrachi said that he had formed the opinion that the applicant was able to consent to Dr Misrachi making the report. Dr Misrachi stated that the applicant "understood the function and role of the court, the Judge or Magistrate, the solicitors of both parties in this matter before the court and the jury. He understood his plea and the meaning and consequences of pleading guilty or not guilty. He understood the consequences of a finding by the court." Dr Misrachi further stated that the applicant understood the charge against him. 13 In the part of his report dealing with his examination of the mental state of the applicant, Dr Misrachi stated that the applicant's thought processes were disorganised and disordered. He noted that the applicant's thought content was abnormal with several delusional beliefs which were based "on little inference" and which were fixed, despite information to the contrary. The delusional beliefs included the following. The applicant believed that the four children were not his, despite DNA evidence to the contrary. He believed that his former wife and his brother had informed potential employers that he was homosexual, with the consequence that he had been refused employment. He believed that since his cerebral haemorrhage his former wife had controlled him and had stolen his assets. He believed that his admission in 1999 to a mental hospital in Western Australia, in which he had been an inmate for a number of months, was unjust and was due to a dental problem which had not been diagnosed and treated. In summary, Dr Misrachi said the applicant had delusions of being controlled by his former wife and had persecutory delusions concerning his former wife and his brother. Dr Misrachi expressed the opinion that the applicant's judgment was markedly limited by his delusional beliefs and deficits due to his brain injury. The applicant lacked any insight into the significance of the brain injury. 14 Dr Misrachi made the following diagnosis: " Mr Hesford suffers from Schizophrenia, Paranoid Type secondary to his cerebral haemorrhage that occurred in 1993. This would be classified as an organic psychosis that has probably not remitted due to lack of active treatment. It is also possible that Mr Hesford suffers from Complex Partial Seizures (Temporal Lobe Epilepsy), which would be consistent with his brain injury. It is possible that Complex Partial Seizures may lead to behaviour such that Mr Hesford has shown towards others. Mr Hesford's lack of insight and non-compliance with any treatment makes his current mental disorder more resistive to treatment. From Mr Hesford's past history prior to his cerebral haemorrhage there is evidence that he was a responsible person who was working effectively and providing for his family. Since his brain injury it appears that his personality may have changed such that he has developed poor impulse control and aggressive outbursts of behaviour. This may also be the consequence of his persecutory delusions due to the development of Paranoid Schizophrenia and his lack of insight". 15 With regard to fitness to plead, Dr Misrachi concluded that Mr Hesford was fit to plead and follow court proceedings. 16 In his report of 10 July 2001, Dr Nielssen said, inter alia, that the applicant had been under Dr Nielssen's care in the acute psychiatric ward of the prison hospital at Long Bay since 14 April 2001. Dr Nielssen said that the applicant had responded to treatment with anti-psychotic medication and by the date of the report had acknowledged that he was mentally ill and that his beliefs regarding his wife and children were delusions. 17 In his report Dr Nielssen said: "As indicated in an earlier conference, I had doubts about Mr Hesford's fitness for trial. … However, he now recognises that he was mentally ill and needs long term treatment". 18 The applicant forwarded a number of documents to the Registrar of this court in connection with this application. All of these documents were prepared by the applicant himself. These documents include a document dated 12 July headed "Submissions to Court of Criminal Appeals", a letter dated 24 September, a document dated 22 October headed "Submissions" and a letter received by the Registrar of the Court on 8 December 2002. In all of the documents which the applicant sent to the court, the applicant consistently referred to himself in the third person as "Philip". In these documents the applicant made many allegations which are irrelevant or, at most, only very marginally relevant to the present application. The allegations made by the applicant include allegations that the children are not his, that further DNA tests should be carried out, that persons have falsely claimed that he is homosexual and numerous allegations against his former wife and his brother. 19 The allegations made in the documents which are most relevant to the present application, are allegations that his plea of guilty before Judge Patten had not been made voluntarily and that he had pleaded guilty, because the prison psychiatrists had administered drugs to him which had deprived him of the ability to think clearly and that he had been coerced into pleading guilty by his legal representatives and by the sentencing Judge himself. 20 On the hearing of the application the applicant addressed the court from the bar table. He did not give any sworn evidence but I am prepared, for the purposes of determining the application, to have regard to the material in the documents which he forwarded to the Registrar of the Court and to what the applicant said in his address. 21 I have already referred to the medical reports of Dr Misrachi and Dr Nielssen. This Court also, of course, has his Honour's remarks on sentence. In his remarks on sentence his Honour referred to the applicant having pleaded guilty when arraigned before his Honour, to the objective facts of the offence, to the applicant's mental disability and the reports of Dr Misrachi and Dr Nielssen and to the kind of sentence his Honour had decided to impose. This Court also has the transcript of the proceedings in the District Court on 16 July and 18 July 2001. 22 We were informed by counsel for the Crown that the Crown had available outside the courtroom as witnesses who could be called by the Crown and whose evidence would support the Crown case, Dr Nielssen, the barrister Mr Smith and the solicitor Mr Alvaro. However, the Court considered that it could determine this application, without those persons being required to give evidence. 23 An initial question is whether the applicant was capable of appearing for himself on this application. I have concluded that the applicant was capable of representing himself on this application. I consider that the applicant is suffering from some delusional beliefs. However, he addressed this Court fluently and articulately and relevantly and made responsive answers when questioned by members of the Bench. I have already referred to the opinions of the psychiatrists that in 2001 the applicant was fit to plead and fit to be tried. 24 The first application made by the applicant is that he be granted an extension of time in which to appeal against his conviction and to apply for leave to appeal against sentence. The grounds sought to be relied on by the applicant on his application for an extension of time, as stated by the applicant in the notice filed by him (and retaining the applicant's spelling) were as follows:- "1. Griffith police listened to Julie 2. With out an interve Phillip ended in Long Bay. 3. SYCS doped Phil with drugs n Phil panict. Becaned mentally ill from drugs b Dr's and coud not help him self 4. His (Phil) solisite was pathetic." 25 In R v Bayliss (2002) NSW CCA 11, the court said at paragraph 8: " It is true that s 10(3) of the Criminal Appeal Act confers an unfettered discretion on the Court to extend the time where it is just, under the circumstances, that such an order be made. Inevitably that requires that attention be given to whether or not there is, in the circumstances of the particular case, room for concern that there may have been a miscarriage of justice: see R v Young [1999] NSCCCA 275 per Smart AJ (with whom Studdert and Dunford JJ agreed) at paras 35 to 37 and 48; also see R v O'Donahue (1988) 34 A Crim R 397 ". 26 In Bayliss the Court also referred in paragraph 6 to what was said in R v Lawrence (1980) 1 NSWLR 122 as follows: " In Regina v Lawrence [1980] 1 NSWLR 122 Nagle CJ at CL and Yeldham J observed at p 148:- 'On many occasions it has been observed by Courts of Criminal Appeal, that intending appellants should not assume that delays in filing notices of appeal or applications for leave to appeal, and especially considerable delays, will automatically be excused. … This Court takes the opportunity to emphasise again that it should not be assumed that a failure to give notice to appeal, or notice of intention to appeal, or to furnish proper grounds of appeal within time will be excused. Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed'" 27 In deciding whether refusing an application for an extension of time in which to appeal against conviction might give rise to a miscarriage of justice, this court usually makes some inquiry into what would be the prospects of an appeal against conviction succeeding, if the application for an extension of time were granted and an appeal against conviction was brought. 28 In the present case, not only did the applicant fail to appeal against his conviction within the time allowed, but the applicant pleaded guilty before Judge Patten. This Court has power to permit a convicted person who has pleaded guilty, to withdraw his plea of guilty, if not permitting the plea of guilty to be withdrawn would give rise to a miscarriage of justice. In R v Boag (1994) 73 A Crim R 35 at 37, the then Chief Judge at Common Law said, with the concurrence of the other members of the court: "A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety, when he would not otherwise have pleaded guilty…. there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt. … The requirement that a miscarriage of justice be demonstrated before leave is granted to withdraw a plea is well settled in the authorities to which I have referred". 29 In R v Bayliss to which I have already referred, the Court said, at paragraph 12: "Finally, as a matter of clear legal principle, we observe that since it is the appellant who contends that a miscarriage of justice has occurred, he bears the onus of demonstrating that fact: Regina v Boag (1994) 73 A Crim R 35 at 37. To the extent to which this depends upon a resolution of matters of fact, he bears the onus of establishing the necessary facts: Regina v Ross (NSWCCA 20 April 1994)". 30 On the basis of the medical evidence of Dr Misrachi and Dr Nielssen, I would find that as at 18 July 2001 the applicant was fit to plead, that he understood the nature of a plea of guilty and that he understood the nature of the charge which was brought against him. There was quite clearly abundant evidence on which he could properly be convicted of the offence with which he had been charged. 31 The contentions made by the applicant really are that while he was in the prison hospital drugs were administered to him by the psychiatrists, which deprived him of the ability to think clearly and deprived him of the ability properly to decide whether he should plead guilty or not guilty and that he was coerced into pleading guilty by pressure exerted by his own legal representatives and by the Judge. 32 The authorities to which I have referred make it clear that the onus is on the applicant to adduce evidence which would establish the facts on which his contentions are based. I have said that I am prepared to have regard to the material in the documents prepared by the applicant which he forwarded to the Court and to what the applicant said in his address to the Court. However, the applicant cannot himself give evidence which would establish that drugs administered to him had the effect which he claims. Expert evidence would be required in order to establish that drugs administered to him had or might have had such an effect. The allegations made by the applicant against the psychiatrists in the Corrections Health Service are inherently implausible and are not supported by anything in their reports. I note that for at least a few days before the applicant pleaded guilty the applicant had been at the Junee Correctional Centre and had not had any drugs administered to him. 33 I am not persuaded that this court should consider that any case has been made that the applicant's own legal representatives or the presiding judge exerted any improper pressure on the applicant to plead guilty. It is true that the transcripts of the proceedings on 16 July and 18 July are fairly brief. There is, however, nothing in the transcript on either day or in Judge Patten's remarks which would support the applicant's contentions. As already stated the Crown had available, as witnesses who it could call, Dr Nielssen, Mr Smith and Mr Alvaro. 34 The Crown case against the applicant, as disclosed in the statements in the prosecution brief of evidence, was overwhelming. The applicant did not really deny that he had committed the offence, apart from suggesting that some of Mrs Hesford's injuries might have been self-inflicted. The sentence imposed by Judge Patten was moderate and the applicant has already served the only part of the sentence which was not suspended. It was not suggested by the applicant that any of the conditions of the good behaviour bond are causing him any hardship. No explanation which I would regard as satisfactory has been given for the delay in bringing the present application. 35 In all of the circumstances I would propose that the application for an extension of time in which to appeal against conviction and to apply for leave to appeal against sentence be refused. 36 MASON P: I agree. 37 DUNFORD J: I also agree. 38 MASON P: The order of the court is that the application is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.