R v Zurek [2002] NSWCCA 61 (7 March 2002)

Last Updated: 19 April 2002

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R .v. ZUREK [2002] NSWCCA 61

FILE NUMBER(S):

60182/01

HEARING DATE(S): 7 March 2002

JUDGMENT DATE: 07/03/2002

PARTIES:

Waldemar ZUREK - Appellant

Regina - Respondent

JUDGMENT OF: Spigelman CJ Grove J Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/21/1147

LOWER COURT JUDICIAL OFFICER: O'Reilly QC DCJ

COUNSEL:

Appellant in person

Mr W.G. Dawe QC for the Crown

SOLICITORS:

Appellant in person

S.E. O'Connor for the Crown

CATCHWORDS:

LEGISLATION CITED:

DECISION:

See Judgment at Paragraph 25

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60182/01

Spigelman CJ

Grove J

Barr J

7 March 2002

regina .V. waldemar zurek

Judgment

1 SPIGELMAN CJ: I invite Barr J to deliver the first judgment.

2 BARR J: The applicant, Waldemar Zurek, seeks an extension of time within which to appeal against certain convictions recorded in the District Court and to seek leave to appeal against the sentences imposed. On 4 February 1999 the applicant pleaded guilty to one count of wounding with intent to do grievous bodily harm, two counts of assault occasioning actual bodily harm and one count of assault. On 17 June 1999 O'Reilly QC DCJ sentenced the applicant on the wounding charge to imprisonment for five years and six months commencing on 9 February 1998, comprising a minimum term of two years six months and an additional term of three years. On each of the remaining counts his Honour sentenced the applicant to a fixed concurrent term of eighteen months' imprisonment. On 2 April 2001 the applicant filed an application for leave to appeal against the sentences and a notice of an application for an extension of time within which to bring the application. On 22 May 2001 he filed a notice of appeal and an application for leave to appeal against the conviction and the sentences.

3 The applicant is the brother of Alicja Robinson. Their mother had died leaving a will and discussions took place between them about the distribution of the estate. They consulted a solicitor, Mr George West, who tendered certain advice. On 9 February 1998 the applicant attended at Mr West's office to keep an appointment. Mrs Robinson attended as well. Mr West had had previous communications with the applicant as a result of which he distrusted him. He therefore decided to tape-record the conference they were to have. Mr West told the applicant that he intended to make the recording and the conference started. The discussion became heated and the applicant took a spear gun out of his bag and pointed it at Mr West. Then he turned and fired it at Mrs Robinson, who was sitting next to him. The spear struck her on the head and she was injured. A struggle ensued during which Mrs Robinson, Mr West and two employees of the practice tried to subdue the applicant. All suffered injuries. The police were called and the applicant was arrested. They found three knives on his person. In his sports bag were a tomahawk and several more knives. The applicant's car, which was parked a short distance from Mr West's office, contained a spear gun, a sword, three machetes, an axe and a spear.

4 Two psychiatric reports were put before his Honour. Dr Neilssen reported that he had seen the applicant on at least two occasions over the eighteen months immediately before the report was written and had discussed his progress with psychiatric nurses working at the Metropolitan Medical Transit Centre at Long Bay Gaol, where the applicant had been held since his arrest. Dr Neilssen had also seen a transcript of Mr West's tape recording. According to Dr Neilssen, the applicant had been treated for psychotic illness not long before he committed the offences. He had a longstanding history of substance abuse, including alcohol dependence and abuse as well as a period of benzodiazepine dependence. In his late forties he began to experience auditory hallucinations. He believed that a former neighbour was threatening and abusing him. He also developed a belief that he was otherwise under threat and that he was being cheated by members of his family. Over a period of up to ten years before the offences the applicant complained about attacks he said had been directed at him and at the place where he lived. Apparently a psychiatrist certified him eligible to receive a disability pension in 1990. Over the years he developed paranoia because of his belief that he was under attack. That is why he assembled an arsenal, some of the weapons of which I have mentioned.

5 Dr Neilssen said that the applicant's mental state improved after several months' treatment with anti-psychotic medication so that he became considerably calmer, more logical and free of psychiatric symptoms. He had been abstinent from alcohol for the longest time since his early adulthood which, Dr Neilssen thought, had contributed to the remission of his symptoms. Dr Neilssen diagnosed either chronic hallucinosis induced by longstanding alcohol abuse or late onset schizophrenia. He thought that the applicant was experiencing a significant psychotic illness at the time of the offences, which affected his perception of events and judgment over and above any real reason for disagreeing with Mrs Robinson and Mr West. He thought that the applicant's prognosis was reasonably good.

6 Dr Westmore thought that the applicant was suffering from any of paranoid schizophrenia, delusional disorder and severe paranoid personality disorder.

7 His Honour imposed an effective additional term which was slightly greater than half the effective sentence because of the applicant's need for the prolonged and intensive supervision of his psychotic condition.

8 The applicant was released to parole on 8 August 2000 after the expiry of the minimum term and all the fixed terms. The parole period is now more than half over.

9 The Court may go behind a plea of guilty and hear an appeal against conviction where a miscarriage of justice may have occurred but the applicant bears the burden of showing that the appeal against conviction should be entertained. It must appear that there is a real question about the guilt of the applicant: R v Chiron [1980] 1 NSWLR 218, R v Boag (1993) 73 A Crim R 35, R v Davies (Court of Criminal Appeal NSW, 16 December 1993, unreported).

10 The applicant filed with his notice of appeal well over fifty pages of submissions and documents in support of the appeal. Some few weeks before the hearing of the appeal he filed three further documents, setting out his reasons for appealing and for appealing out of time and giving an explanation of what happened on the day that Mrs Robinson was injured.

11 When the appeal was called on for hearing today, the applicant handed up substantial further written submissions and other material. The applicant has also addressed the Court orally. His complaints may be summarised as follows:

(i) The effect of psychotic drugs upon him was so great that he was unable to think straight and give proper instructions to counsel about his defence to the charges.

(ii) Although he had a sympathetic solicitor, the solicitor left the case shortly before the hearing and the applicant's counsel throughout, a public defender, whom the applicant described as 'tokenly appointed', placed undue pressure upon him over a period of eighteen months to plead guilty. His counsel kept 'compelling' him to change his plea and promised him easy conditions in prison if he did. Counsel failed to visit him for four months between February and June 1999. The solicitor whom the applicant favoured left the case in disgust. The most serious of the charges of which the applicant was convicted was charged alternatively to a count of wounding with intent to murder. According to the applicant, counsel told him that he had to offer the prosecution something in exchange for their acceptance of the plea in discharge of the indictment. Counsel co-operated with the prosecution, allowing them to withdraw and conceal photographs of Mrs Robinson's injuries. His Honour was deceived by Mrs Robinson and the prosecution because they exaggerated the seriousness of her wounds.

(iii) Mr West and Mrs Robinson had both lied on a previous occasion. The applicant would wish to have a new trial to bring evidence of those lies before the jury.

(iv) Mr West and others on his behalf had repeatedly telephoned the applicant and enticed him to go to Mr West's office. They told him that he would be able to collect his mother's will and some money. The real reason was that Mr West wished to ambush him by making accusations against him and by recording their conversation.

(v) Mr West had subjected the applicant to extreme provocation by poking the microphone into his face so as to justify his taking the loaded spear gun to try to fend off the microphone. Mr West had then attacked the applicant and Mrs Robinson had been injured in the melee which resulted.

12 The applicant also provided a long and detailed written account of the history of attacks upon him over the years which, he said, justified his arming himself in the manner I have summarised.

13 He also put before the Court reports and clinical notes dealing with the course of treatment of his mental illness since his conviction and sentence.

14 In view of the psychotic history of the applicant and the reports of Dr Neilssen and Dr Westmore, it is impossible to accept as factual the circumstances put forward by the applicant as justifying his fear of attack. It appears as though the applicant is repeating in this Court much of what he told the psychiatrists and which they concluded was delusional. The applicant's claim to have been unable to think straight at the time of the hearing is contrary to the opinion of Dr Neilssen. On 19 May 1999, three months after the pleas of guilty and one month before the imposition of sentence, he described the applicant as not particularly anti-social despite previous convictions and not attempting to deflect blame. He was relieved that Mrs Robinson had been only slightly injured.

15 In my opinion, the attacks on defence counsel are without merit. Defence counsel was a public defender of long experience in the conduct of serious criminal matters in the Supreme Court and the District Court. The applicant was fortunate to have his services. There is no evidence that the applicant made any contemporaneous complaint about the advice counsel was giving or about the way he was conducting the case. I infer that the applicant understood what was happening and the advice he was being given. It seems to me that any advice to plead guilty, especially to a lesser alternative charge, was sound in view of the strong Crown case, supported as it was by the tape recording of what had taken place in Mr West's office, together with a transcript of the same. There is no objective support for the assertion that counsel acted in any way improperly by permitting the Crown to conceal evidence so as to exaggerate the seriousness of the case.

16 During his submissions the applicant went to a lot of trouble to submit that the sentencing Court was seriously misled about the seriousness of Mrs Robinson's injury. Upon the hearing of the appeal, he tendered further documents and clinical notes going to that very subject. He described them in his submissions as 'grazing' and 'superficial'. The word 'superficial' was used in one of the medical reports tendered to the sentencing Judge. There was before his Honour a report of Dr Peter Stephens, who attended Mrs Robinson at Mt Druitt Hospital. According to Dr Stephens there were three full thickness lacerations, one approximately three centimetres long to the right superior parietal bone, one of the same length behind the right ear and one of about the same length behind the left ear. Six sutures were put into one of the wounds and one suture into each of the others. In a prior report, Dr Stephens had described the injuries as superficial. I see no significant distinction between the use of the term 'superficial' and the more detailed description which I have summarised. In her statement, tendered to the sentencing Court, Mrs Robinson said that she had nine stitches, as against Dr Stephens' statement that there were eight. I do not consider the difference significant.

17 It was part of the Crown case that as well as discharging the spear the applicant had struck Mrs Robinson on the back of the head. Defence counsel made clear that that assertion was challenged. His Honour carefully noted what had been admitted and what had not and observed that the spear seemed to have struck Mrs Robinson a glancing blow.

18 Referring to an injury to the back of Mrs Robinson's head, his Honour observed that the blow which caused it was not highly relevant to the sentence he was to impose but that the important elements were the discharge of the spear gun and the relevant accompanying intent. By his plea of guilty, of course, the applicant had admitted an intent to do Mrs Robinson grievous bodily harm. With respect, his Honour's observation was correct. I do not think that his Honour was in any way misled about the nature of the injuries suffered by Mrs Robinson.

19 The remainder of the applicant's submissions concerned his description of the events of the day of Mrs Robinson's injury and the events which led up to that incident. I have already remarked on the difficulty of accepting any such statement as factual, but to the extent that it might be, none of the evidence of any such incident is fresh. Any and all of this material could have been put before the sentencing Court. The reason put forward why it was not is that the applicant was in no state to do so because of the effect upon him of the drugs he had been forced to take, but I have already rejected that contention.

20 This morning the applicant put before the Court detailed statements and submissions concerning his criminal history, including a part of the judgment of Levine DCJ, as his Honour then was, on 26 February 1992 when dealing with the applicant in the District Court at Penrith. The charge concerned the applicant having discharged a firearm. His Honour went to some pains to note the serious provocation to which the applicant had been subjected at the time of the offence.

21 The applicant has also submitted that police fabricated medical reports and compelled a doctor, presumably Dr Stephens, to exaggerate Mrs Robinson's injury. This is no more than a submission unaccompanied by evidence. I think that the submission should be rejected. In any event, as I have said, I think that the proper conclusion is that the precise nature of Mrs Robinson's injury was of less moment in sentencing than the intent with which the spear gun was discharged.

22 The applicant has also tendered and relied on reports and clinical notes showing the medical attention he has received since sentence and dealing with the progress of his recovery from mental illness.

23 It is encouraging that that has been the course of the applicant's illness but these are not matters which may be taken into account in considering his application.

24 Nothing put before the Court persuades me that the applicant did not understand the nature of the pleas he was entering or that for any reason a miscarriage of justice may have occurred. Nothing submitted persuades me that the sentences were outside the proper range of his Honour's sentencing discretion. If the Court were dealing with the conviction and sentence appeal, I would have proposed that it be dismissed.

25 As it is, the first application was filed more than one year and nine months after the convictions were entered and sentences imposed. The sentences have been largely served. I do not think in all the circumstances that the Court ought to grant an extension of time within which to bring the appeal against the convictions, or the application for leave to appeal against the sentences. I propose that the application for an extension of time be refused.

26 SPIGELMAN CJ: I agree with the reasons of Barr J and also with the orders his Honour proposes. I note that the first notice of appeal, that dated 29 March, is against sentence only. The second notice of appeal, of 17 May, is as to conviction and sentence and it is accompanied by a notice of application for extension of time. One of the matters raised, in the documents that the applicant handed to the Court today, is a submission to the effect that the evidence as to what had happened to his sister could not constitute 'a wound' for the purposes of s 33 of the Crimes Act 1900.

27 In that regard, the applicant placed emphasis on the references to a 'grazing injury' and to the 'superficial' nature of the wounds in some of the medical documentation. It is clear to me that notwithstanding those descriptions, what occurred was a wound and, therefore, there was a wounding for the purposes of s 33. Even if an extension of time had been granted that particular basis for an appeal would have been rejected by this Court. Subject to these additional observation, I agree with the orders and the reasons of Barr J.

28 GROVE J: I agree with Barr J and also the additional remarks of Spigelman CJ.

29 SPIEGLMAN CJ: The orders of the Court will be as stated by Barr J.

LAST UPDATED: 18/04/2002