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R v AAM; ex parte Attorney-General

 

[2010] QCA 305

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Reference under s 672A Criminal Code

ORIGINATING COURT:

DELIVERED ON:

5 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2010

JUDGES:

McMurdo P, White JA and Cullinane J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Allow the appeals

2.Set aside the convictions or findings of guilt in respect of the following offences:

Name of offence

Date offence was committed

Date of conviction in Toowoomba Magistrates Court

Unauthorised dealing
with shop goods (x9)

3 September 2001

21 September 2001

16 October 2001

14 December 2001

16 October 2001

14 December 2001

22 October 2001

14 December 2001

5 November 2001

14 December 2001

22 November 2001

14 December 2001

21 February 2002

10 April 2002

21 February 2002

10 April 2002

2 April 2002

8 May 2002

Stealing (x3)

Between 8 October
2001 and 22 October
2001

14 December 2001

16 October 2001

14 December 2001

10 February 2003

24 March 2003

Breach of probation
order

Unknown

10 April 2002

Possessing property
which may reasonably be
suspected of being
tainted property

5 November 2001

14 December 2001

Possession of property
suspected stolen or
unlawfully obtained

2 April 2002

8 May 2002

3.Instead, in each case direct that judgments and verdicts of acquittal be entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – appellant pleaded guilty in the Toowoomba Magistrate's Court to several property offences and breaching a probation order between 2001 and 2003 – appellant charged with further offences and Mental Health Court found that, in respect of those offences, appellant was 'unfit for trial and that that unfitness is of a permanent nature' under s 270 and s 271 Mental Health Act 2000 (Qld) – Attorney-General referred the appellant's case to the Court of Appeal under s 672A(a) Criminal Code 1899 (Qld) – whether the appellant was unfit to plead at the time she pleaded guilty to and was sentenced for the 2001-2003 offences – whether a miscarriage of justice has occurred – whether convictions should be set aside

Constitution of Queensland 2001 (Qld), s 36

Criminal Code 1899 (Qld), s 613, s 672(a)

Mental Health Act 2000 (Qld), s 240(3), s 247(2), s 256, s 257(3), s 270, s 271

Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29, cited

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited

R v Daley; ex parte A-G (Qld) [2005] QCA 162, cited

R v Main; ex parte A-G (Qld) (1999) 105 A Crim R 412; [1999] QCA 148, cited

COUNSEL:

M J Byrne QC for the appellant

W Sofronoff QC SG, with E S Wilson, for the respondent

SOLICITORS:

The Advocacy and Support Centre for the appellant

Director of Public Prosecutions (Queensland) for the respondent

[1]  McMURDO P: On 2 June 2009, the appellant, with the authority of her formal guardians who are her parents, petitioned Her Excellency, Ms Penelope Wensley AO, Governor of Queensland, under s 36 Constitution of Queensland 2001, for a pardon in respect of all of the offences contained in the appellant's Queensland criminal history as of 2 June 2009.  These offences are nine entries for unlawfully dealing with shop goods, three entries for stealing; one entry for possession of tainted property; one entry for possessing property suspected of being stolen; and one entry for breaching a probation order.  All these entries were recorded in the Toowoomba Magistrates Court between 2001 and 2003 following the appellant's pleas of guilty.

[2] On 31 March 2010, the Hon Cameron Dick MP, Attorney-General and Minister for Industrial Relations, referred the case to the Court of Appeal under s 672A(a) Criminal Code.  That section allows the Attorney-General to:

"(a) refer the whole case to the Court [of Appeal], and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; …"

[3] The appellant is now 41 years old.  It is common ground that, at least since childhood, she has had a significant intellectual impairment.  Psychological tests administered in 2005 showed that her Full Scale IQ was in the lowest one per cent of the population.  She was charged with further offences not the subject of this appeal, allegedly committed at various times between 1 May 2003 and 30 August 2004.  These alleged offences concerned the stealing of considerable quantities of greeting cards, envelopes and calendars, and possessing tainted property (more greeting cards and envelopes).  A solicitor from the Toowoomba Advocacy and Support Centre assisted the appellant in referring these matters to the Mental Health Court.  On 31 January 2006, that court determined that, although the appellant was not of unsound mind at the time of those alleged offences, she was, under s 270 and s 271 Mental Health Act 2000 (Qld), "unfit for trial and that that unfitness is of a permanent nature"; a forensic order under Ch 7 Pt 7 Mental Health Act was not warranted. [1]

[4] The appellant was charged with two further offences, namely, stealing on 27 September 2005 and breach of a domestic violence order on 22 January 2006.  These matters were again referred to the Mental Health Court.  That court again determined that the appellant was "unfit for trial and that that unfitness is of a permanent nature given her mental disabilities" and a forensic order was not warranted.[2]

[5] It is common ground in this appeal that the psychiatric evidence at the two Mental Health Court hearings unequivocally established both that the appellant's intellectual disability affecting her fitness to plead pre-dated the offences the subject of this appeal, and that her intellectual disability is permanent.  As the respondent concedes, the overwhelming inference from the evidence given in the two proceedings in the Mental Health Court is that the appellant was unfit to plead to each of the offences the subject of this appeal when she pleaded guilty and was sentenced in the Toowoomba Magistrates Court.

[6] It is unclear whether the appellant entered the guilty pleas to the charges the subject of this appeal simply to dispose of these relatively minor matters quickly, or because the criminal justice system does not make provision for dealing with fitness for trial issues in the Magistrates Court.

[7] By way of explanation, references to the Mental Health Court to determine issues, including fitness for trial, can only be made in relation to indictable offences (s 256 Mental Health Act) or if a simple offence is related to indictable offences which are referred to the Mental Health Court (s 256 and s 257(3) Mental Health Act).  Where an involuntary patient under the Mental Health Act is charged with offences, the issues as to the patient's mental condition relating to the offence with which the patient is charged may be referred to the Director of Public Prosecutions.  If the offences are simple offences only, the Director of Public Prosecutions may determine if the proceedings should continue or be discontinued.  But the Director of Public Prosecutions cannot refer a patient who is charged only with simple offences to the Mental Health Court (s 240(3) and s 247(2) Mental Health Act). 

[8] Further, s 613 Criminal Code 1899 (Qld) provides for accused persons, when they are called on to plead to an indictment, to have a jury determine whether they are capable of understanding the proceedings at the trial so as to be able to make a proper defence (that is, the issue of fitness to plead).  But there is no corresponding section in the Justices Act 1886 (Qld), nor in any other Act, to allow for the determination of the issue of the accused person's fitness to plead to summary offences. 

[9] It seems unsatisfactory that the laws of this State make no provision for the determination of the question of fitness to plead to summary offences.  It is well documented that mental illness is a common and growing problem amongst those charged with criminal offences.  The Magistrates Court has attempted to meet this problem through its Special Circumstances Court Diversion Program which apparently presently operates only in the Brisbane area.  This program assists categories of vulnerable people including those with impaired decision-making capacity because of mental illness, intellectual disability, cognitive impairment, or brain and neurological disorders.[3]  This commendable initiative, which allows for suitable compassionate supervisory and supportive bail and sentencing orders to be made in appropriate cases, may well be effective in assisting these vulnerable people.  But it does not and cannot provide a satisfactory legal solution where people charged with summary offences under the criminal justice system are unfit to plead to those charges.  The legislature may wish to consider whether law reform is needed to correct this hiatus in the existing criminal justice system.

[10]  Returning now to the direct concerns of this appeal, I note that the pardoning power of the Governor under s 36 Constitution of Queensland is in broad and unfettered terms and plainly extends to pardoning summary findings of guilt.  Nor is there anything in the terms of s 672A Criminal Code to suggest that the section limits the pardoning power of the Governor to indictable offences, or that it excludes the pardoning power in respect of indictable offences dealt with summarily or summary offences.  The Attorney has referred the petition for pardon to this Court under s 672A for hearing and determination as in the case of an appeal.[4]  In the present case, that involves a consideration of whether the findings of guilt recorded after the appellant's guilty plea to the charges the subject of this appeal should be set aside because they amount to a miscarriage of justice:[5] R v Main; ex parte A-G (Qld);[6] R v Daley; ex parte A-G (Qld).[7]

[11]  An appellate court does not lightly set aside convictions based on pleas of guilty.  In Meissner v The Queen,[8] Brennan, Toohey and McHugh JJ explained:

"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."[9]

[12]  It is common ground that this Court should infer, from the material before, and the findings of, the Mental Health Court that the appellant was unfit to plead at the time she pleaded guilty to and was sentenced for the offences the subject of this appeal.  She therefore did not enter these guilty pleas in the exercise of a free choice.  In those circumstances, it would be a miscarriage of justice to allow those findings of guilt to stand: see the observations of Gaudron J[10] and Hayne J[11] in Eastman v The Queen

[13]  I would make the following orders:

1.Allow the appeals.

2.Set aside the convictions or findings of guilt in respect of the following offences:

Name of offence

Date offence was committed

Date of conviction in Toowoomba Magistrates Court

Unauthorised dealing
with shop goods (x9)

3 September 2001

21 September 2001

16 October 2001

14 December 2001

16 October 2001

14 December 2001

22 October 2001

14 December 2001

5 November 2001

14 December 2001

22 November 2001

14 December 2001

21 February 2002

10 April 2002

21 February 2002

10 April 2002

2 April 2002

8 May 2002

Stealing (x3)

Between 8 October
2001 and 22 October
2001

14 December 2001

16 October 2001

14 December 2001

10 February 2003

24 March 2003

Breach of probation
order

Unknown

10 April 2002

Possessing property
which may reasonably be
suspected of being
tainted property

5 November 2001

14 December 2001

Possession of property
suspected stolen or
unlawfully obtained

2 April 2002

8 May 2002

3.Instead, in each case direct that judgments and verdicts of acquittal be entered.

[14] WHITE JA: I have read the reasons of the President in this matter and agree with her reasons and the orders which she proposes.

[15] CULLINANE J:  I have had the opportunity to read the reasons of the President in this matter.  I agree with those reasons and the orders proposed.

Footnotes

[1] Mental Health Court, Holmes J, Dr J F Wood and Dr J M Lawrence assisting, Court Proceeding No 142 of 2005, unreported, 31 January 2006. Restricted access transcript.

[2] Mental Health Court, Philippides J, Dr J F Wood and Dr J M Lawrence assisting, Court Proceeding No 0064 of 2006, unreported, 13 February 2007. Restricted access transcript.

[3] Queensland Courts website, Special Circumstances Court Diversion Program at

< http://www.courts.qld.gov.au/4852.htm>.

[4] Criminal Code, s 672A(a).

[5] Criminal Code, s 668E(1).

[6] (1999) 105 A Crim R 412, 415-416 [17]; [1999] QCA 148.

[7] [2005] QCA 162, 8.

[8] (1995) 184 CLR 132; [1995] HCA 41.

[9] Above, 141.

[10] (2000) 203 CLR 1, 22 [63]; [2000] HCA 29. Gaudron J was in the minority but her Honour's observations in this respect were uncontentious and, with respect, clearly correct.

[11] Above, 106 [320].

Close

Editorial Notes

  • Published Case Name:

    R v AAM; ex parte A-G (Qld)

  • Shortened Case Name:

    R v AAM; ex parte Attorney-General

  • MNC:

    [2010] QCA 305

  • Court:

    QCA

  • Judge(s):

    McMurdo P, White JA, Cullinane J

  • Date:

    05 Nov 2010

Litigation History

Event Citation or File Date Notes
Primary Judgment - - Criminal
Appeal Determined (QCA) [2010] QCA 305 05 Nov 2010 -

Appeal Status

{solid} Appeal Determined (QCA)