R v Walton[2016] QCA 17

COURT OF APPEAL

HOLMES CJ

GOTTERSON JA

JACKSON J

CA No 184 of 2015

SC No 58 of 2014

THE QUEEN

v

WALTON, Timothy MarkApplicant

BRISBANE

THURSDAY, 11 FEBRUARY 2016

JUDGMENT

THE CHIEF JUSTICE:  I’ll ask Justice Jackson to give his reasons first.

JACKSON J:  This is an application to extend time to give notice for leave to appeal against conviction and an application for leave to appeal against conviction.  On 16 March 2015, the applicant was arraigned on a five count indictment.  Count 2 was as follows:

“that between the 30th day of November 2011 and the 13th day of December 2013 at Crystal Creek in the State of Queensland Timothy Mark Walton unlawfully produced the dangerous drug cannabis

And the quantity of the drug exceeded 500 grams.”

The applicant entered a plea of guilty to Count 2 and pleas of not guilty to the other counts on the indictment.  The allocutus was administered in respect of Count 2.  The applicant was not then sentenced.  The sentence was adjourned till a future date.  It has not yet been heard.

On 26 June 2015, the applicant applied to a judge of the Trial Division of this Court to withdraw the guilty plea to Count 2.  The application was refused on the following grounds.  His Honour said:

“I am not persuaded that when Mr Walton was arraigned that he was actively affected by any deficit of hearing or understanding or cognition that prevented him from understanding what was being asked of him or of entering pleas to the counts of his own free choice, acting in his own interests.  I am not satisfied that he has shown that he did not understand the nature of the charge or that he did not intend to admit that he was guilty of Count 2 on the indictment.”

Because the allocutus was administered, the applicant was convicted on Count 2 and had a right to apply for leave to appeal against the conviction under s 668D of the Criminal Code.

On 13 August 2015, the applicant filed an application signed about a week earlier for an extension of time for notice of leave to appeal and an application for leave to appeal against the conviction.

The application to extend time was caused by the applicant’s failure to understand the procedure on appeal following his conviction.  Initially, he pursued the application for leave to withdraw his plea of guilty before the Court constituted by a judge of the Trial Division.  Even after that decision, his application was not filed promptly, but it appears that he sought to start an application and appeal informally in July 2015.

The respondent opposes the application to extend time and application for leave to appeal.  It does so on the ground that an appeal would be futile, not because of the delay as such.  On an appeal, the question would be whether there has been a miscarriage of justice under s 668E of the Criminal Code to justify an order overturning the conviction because of the circumstances under which the plea of guilty was made.  The principles are well established – see R v Verrall [2013] 1 Qd R 587, R v Wade [2012] 2 Qd R 31, and Meissner v The Queen (1995) 184 CLR 132.

The applicant does not seek to withdraw his plea of guilty and to enter a plea of not guilty generally to any charge that at Crystal Creek in the State of Queensland he unlawfully produced the dangerous drug cannabis in a quantity of the drug that exceeded 500 grams.  His dispute is that he produced the drug from a date not as early as 30 November 2011.  He made that clear at the hearing on his application before the judge of the Trial Division on 26 June 2015 and again before us.  In fact, his oral submissions constitute further admissions of his guilt of the offence with which he was charged.

The dispute about the date is not a reason to permit the applicant to withdraw his plea of guilty to Count 2.  The fact of the applicant’s conviction on Count 2 prevents him from contesting that he did not produce cannabis on some date or dates during the period between 30 November 2011 and 13 December 2013, but it does not prevent him from contesting at sentence that the date from which his production commenced was later than 30 November 2011, or that his production did not continue throughout the whole of the period between the day on which it commenced and the end of the period.

It may have been that the parties proceeded before the learned primary judge on 26 June 2015 upon a contrary assumption, but the respondent’s outline of argument before this Court recognises the correct position.

In my view, once that point is reached, the basis of the application for leave to appeal falls away.  The applicant does not, in fact, contest the facts which are necessarily admitted by the conviction on Count 2.  The applicant is free to contest at sentence whether the period of production commenced as early as 30 November 2011.  In those circumstances, in my view, there was no miscarriage of justice in accepting the applicant’s plea of guilty and in convicting him on Count 2.  It simply doesn’t matter whether or not at the time of entering his plea the applicant appreciated that the earliest date provided in Count 2 for the period during which production occurred was 30 November 2011.

In oral submissions, the applicant pressed the proposition that the requirement for disclosure of a copy of the indictment contained in the Criminal Code was one that was not complied with and, because it was not complied with, the proceeding in accepting his plea and convicting him miscarried.  In my view, that argument cannot be accepted.  It is not a proposition of fundamental invalidity in all cases that s 590AH(2)(a) is not complied with.  For those reasons, in my view, the application to extend time and the application for leave to appeal must be dismissed.

THE CHIEF JUSTICE:  I agree.

GOTTERSON JA:  I also agree.

THE CHIEF JUSTICE:  The applications to extend time and for leave to appeal are dismissed.  Thank you.  We can end the video link and we’ll take the next matter.