R v Shipley[2016] QCA 23

SUPREME COURT OF QUEENSLAND

[1] GOTTERSON JA:  By an indictment presented on 14 July 2014 at the Supreme Court at Rockhampton, the appellant, Kathleen May Shipley, was charged on two counts of offences against s 9(d) of the Drugs Misuse Act 1986 (Qld).[1]  The first count was that on 30 July 2013 at Tully, the appellant unlawfully had possession of the dangerous drug methylamphetamine.  The second count was that on the same day and at the same place, she unlawfully had possession of the dangerous drug cannabis.

[2] On 2 March 2015, the appellant appeared before a judge of the trial division.  It is common ground that at that point, the allocutus was administered in respect of both counts.  Consistently with the view expressed by Holmes JA, as her Honour then was, in R v Verrall,[2] at that point, convictions of the appellant on both counts were formally recorded.  On 9 March 2015, the appellant filed a notice of appeal against the convictions.[3]  Sentencing of the appellant has been adjourned pending the outcome of this appeal.

[3] The administration of the allocutus proceeded upon a ruling made by another judge of the trial division on 10 December 2014 which directed that pleas of guilty be entered to the counts on the indictment notwithstanding that the appellant pleaded not guilty to them upon arraignment.  The direction that the pleas of guilty be entered was made in reliance upon s 600(2) of the Criminal Code (Qld).  It was not capable of being the subject of an interlocutory appeal.[4]  The ruling itself is the subject of the appeal against conviction.

[4] The ruling was made in circumstances where the appellant had pleaded guilty to the charges in accordance with the registry committal procedure governed by s 114 of the Justices Act 1886 (Qld).  On 13 December 2013, the appellant’s then solicitor signed a Notice of Intention to Proceed via Registry Committal document[5] which stated that the appellant was charged with three indictable offences that were not to be heard summarily.  The indictable offences were listed.  The first two offences charged correspond with Counts 1 and 2 on the indictment.  The document which was communicated to the clerk of the court also stated that the appellant consented to proceed via registry committal on the charges and that she wished to elect to enter pleas of guilty to them and to be committed for sentence at the District Court at Rockhampton.

[5] The appellant subsequently pleaded guilty to all three charges by signing a document headed “Acknowledgement of Plea” on 12 February 2014 in the presence of her solicitor.[6]  This document which was also filed with the clerk of the court contained an acknowledgement by the appellant that she was not obliged to enter any plea and that she had nothing to hope from any promise and nothing to fear from any threat that may have been held out to induce her to make any admission or confession of guilt.

[6] The appellant was committed for sentence by way of registry committal on 28 February 2014.  In due course, the indictment was presented in the Supreme Court.  After several mentions, the appellant was arraigned on 24 November 2014.  She pleaded not guilty to each of the two counts.  The Crown contended that despite the pleas of not guilty, the Court should instead proceed to enter pleas of guilty and deal with the appellant on that basis.

[7] The learned primary judge made directions for the determination by way of application under s 590AA of the Criminal Code of two issues, firstly, whether the appellant could lawfully withdraw the pleas of not guilty and, secondly, whether, if she could, evidence of the fact of the pleas of guilty could be admitted at her trial.  The application was heard on 3 December 2014 and, as noted, the ruling was made some seven days later.

The change of pleas to not guilty

[8] Why it is that the appellant wished to enter pleas of not guilty to the charges is explicable by the state of the evidence available to be led in the Crown case.  The learned primary judge summarised that evidence in the following way:

“[4]On 30 July 2013 police observed a white truck perform a manoeuvre and come to a stop near a service station.  Police checks showed that the registered owner of the truck, one Pallas, was wanted for questioning by police.  When police approached the vehicle, Pallas was in the driver's seat.  The defendant and another person, Hewitt, were seated in the passenger seats.  I understand all to be located on the front bench seat of the truck.

[5]After conducting a search of the truck, police located a silver canister wedged on top of a red tool box affixed to the undercarriage of the tray.  Inside the canister was a number of clip seal bags and several vials, each containing crystal substances.  Subsequent analysis showed that the canister contained:

(a)A glass [pipe] in which methylamphetamine was detected;

(b)A second glass pipe in which methylamphetamine and methylsuflonylmethane was indicated;

(c)Two clip seal bags in which 2,4-methylenedixoypyrovalerone was detected;

(d)Four clip seal bags in which methylamphetamine was detected;

(e)One clip seal bag in which methylamphetamine and methylsuflonylmethane was indicated;

(f)One clip seal bag in which methylamphetamine, methylsuflonylmethane and chlorpheniramine was indicated; and

(g)A clip seal bag containing less than 1 gram of cannabis seeds and cannabis leaf.

[6]There was a large quantity of methylamphetamine found in the various substances located - 16.956 grams, and at a high level of purity ranging from 48.6% to 67.6%.

[7]The canister also contained drink straws, five empty vials, a small gas lighter, digital scales, a further clip seal bag containing two black rubber pieces, a metal strainer and a blue grinder.

[8]Located inside the cab of the vehicle, and behind the driver’s seat, was a plastic shopping bag containing eight packets with a large quantity of clip seal bags inside each of the packets, each containing a distinctive green seal.  The bags found in the canister were similarly sealed.

[9]Ms Shipley, along with Pallas and Hewitt, was arrested and transported to Tully Police station.  She participated in a record of interview, in which she stated that she did not know about the drugs or utensils found on the truck.  The other two declined to be interviewed.”[7]

His Honour noted that this was the evidence both when the appellant pleaded guilty and when she subsequently pleaded not guilty to the charges.[8]

[9] The learned primary judge examined this evidence and assessed whether it was capable of proving that the appellant was in possession of the drugs the subject of the charges at the relevant time.  He did so on the footing that the definition of “possession” in Schedule 1 of the Criminal Code is applicable to, but not exhaustive of, its meaning in s 9(d), leaving scope for the application of the common law concept of possession as well.

[10] His Honour observed that both the common law concept and the definition in the Code require the essential common element of “control”.[9]  He concluded that possession was not proved by the evidence, noting that the appellant denied any knowledge of the presence of the drugs; that there was no direct evidence that she was aware of their presence; and that she made no claim to them or exercised any overt control over them.[10]

[11] His Honour also rejected an argument by the prosecution that the reversal of onus of proof provision in s 129 of the Drugs Misuse Act applied.  He noted that in order for the onus to be reversed, the prosecution must first show that the appellant was “the occupier or concerned in the management or control” of the truck.  As to that, his Honour said:

“[30]A person sitting in the passenger seat of a vehicle, without more, is not normally seen to be the one ‘concerned in the management or control’ of the vehicle, particularly where there is someone else driving the vehicle.  Pallas would seem to be the one in control of the vehicle.  In the absence of any other evidence I am satisfied that the prosecution cannot establish that Ms Shipley was ‘concerned in the management or control’ of the vehicle.”[11]

[12] The learned primary judge found that the submission for the appellant that the evidence available at the time of her registry committal and the entry of her plea was not sufficient to sustain a conviction on either charge, should be accepted.[12]  On appeal, the respondent concedes that this finding was correct on the evidence presented to his Honour.[13]

The grounds of appeal

[13] There are two grounds of appeal, the second of which was added by leave granted at the hearing of the appeal.  The grounds are:

1.That the decision directing that pleas of guilty be entered to the charges on indictment SUP37/14 is wrong in law; and

2.That the convictions of the appellant constitute a miscarriage of justice.

[14] In submissions, the appellant has refined Ground 1 as based upon the proposition that s 600(2), properly construed, has no application to circumstances where a person has been committed for sentence upon a registry committal.  There was, therefore, no power to direct that the pleas of guilty be entered.[14]

[15] Ground 2 contends that a miscarriage of justice occurred because the appellant pleaded guilty in the first place through a misapprehension on her part of the law as a consequence of which her pleas were not attributable to a genuine consciousness of guilt.[15]  The appellant has filed two applications in which leave is sought to adduce evidence by way of affidavit in support of this ground.  The first application was filed on 29 September 2015 and the second on 1 October 2015.  The first relates to evidence by affidavit of the appellant affirmed on 26 August 2015, affidavit of C G Dee sworn on 25 September 2015 and affidavit of J Lodziak sworn on 29 September 2015.  The second application concerns evidence by further affidavit of the appellant affirmed on 30 September 2015.  These affidavits were received without objection at the hearing of the appeal for the purpose of determining the leave applications, grant of which is opposed.  Also received was an affidavit of P A Negerevich sworn on 23 September 2015 on which the respondent would rely in the event that the leave sought is granted.

[16] It is appropriate to discuss each ground of appeal separately and convenient to consider Ground 1 first.  It will assist the consideration of this ground to set out statutory provisions which have relevance to the construction and application of s 600(2).

Statutory provisions – Justices Act and Criminal Code

[17] Part 5 of the Justices Act relates to proceedings in the case of indictable offences.  Division 5 of Part 5 (ss 103B-111) is concerned with the examination of witnesses before a justice by way of a committal hearing.  Section 104 regulates the conduct of such examinations.  Amongst its provisions are the following:

“104Proceedings upon an examination of witnesses in relation to an indictable offence

…

(2)When, upon such an examination all the evidence to be offered on the part of the prosecution has been adduced and the evidence, in the opinion of the justices then present, is not sufficient to put the defendant upon trial for any indictable offence, the justices shall order the defendant, if the defendant is in custody, to be discharged as to the charge the subject of that examination, but if in the opinion of such justices (or if there be more justices than 1 then present, in the opinion of any 1 of such justices) the evidence is sufficient to put the defendant upon trial for an indictable offence then the justices or 1 of them shall—

(a)save, with respect to a particular defendant, in relation to evidence given during the absence of that defendant pursuant to the provisions of section 104A, cause to be read to the defendant the deposition of the witnesses who may have given evidence at the examination in the defendant’s absence; and

(b)address to the defendant the following words or words to like effect—

‘You will have an opportunity to give evidence on oath before us and to call witnesses for the defence. But first I am going to ask you whether you wish to say anything in answer to the charge. You need not say anything unless you wish to do so and you are not obliged to enter any plea; and you have nothing to hope from any promise, and nothing to fear from any threat that may have been held out to induce you to make any admission or confession of guilt. Anything you say will be taken down and may be given in evidence at your trial. Do you wish to say anything in answer to the charge or enter any plea?’

(3)Whatever the defendant may say in answer to the words addressed to the defendant pursuant to subsection (2) shall be reduced to writing and read to the defendant and shall thereupon be signed by the justices and by the defendant, if the defendant so desires, and shall be kept with the depositions of the witnesses and shall, if the defendant is committed to be tried or for sentence, be transmitted with such depositions in accordance with the provisions of section 126.

…”

[18] Division 6 of Part 5, s 113, deals with the circumstance where the defendant at committal enters a plea of guilty when asked by the justice whether he or she wishes to enter a plea in conformity with s 104(2)(b).  This section relevantly provides:

“113Procedure if defendant pleads guilty

(1)If the defendant, upon being addressed by the justices pursuant to section 104(2) says that he or she is guilty of the charge the justices, instead of committing the defendant to be tried, shall order the defendant to be committed for sentence before some court of competent jurisdiction, and, in the meantime shall, by their warrant, commit the defendant to prison to be there safely kept until the defendant is delivered by due course of law or granted bail.

  …”

[19] The procedure for registry committals is governed by Division 7A of Part 5 which commenced on 1 November 2010.[16]  This procedure permits a clerk of the court at a place to order a defendant to be committed for trial or sentence when prescribed circumstances apply.  Section 114 enacts the following with respect to this procedure:

“114Registry committal by clerk of court

(1)The clerk of the court at a place may order a defendant to be committed to be tried or sentenced for an indictable offence, if all of the following apply—

(a)the indictable offence is not to be heard and decided summarily;

(b)all evidence of witnesses for the prosecution (including the evidence of any affected child under the Evidence Act 1977, part 2, division 4A, given under the requirements of that division) is intended to be given in written statements;

(c)the written statements have been filed in the court and copies given to the defendant by the prosecution;

(d)the defendant, if an individual, is not in custody, and is not in breach of any condition of the undertaking on which the defendant was granted bail;

(e)the defendant is represented by a lawyer;

(f)the lawyer has, by written notice, or by email or some other electronic form of written communication, given a notice to the clerk of the court—

(i)stating that the defendant does not intend to give evidence or call any witness in relation to the defendant’s committal for the indictable offence; and

(ii)acknowledging that the functions of the clerk of the court for a registry committal do not include considering or deciding whether the evidence before the clerk of the court is sufficient to put the defendant on trial for the indictable offence; and

(iii)stating whether the defendant wishes to be committed for trial, or to be committed for sentence;

(g)the notice given under paragraph (f) is given to the clerk of the court not later than the date set by the court or by practice direction;

(h)the defendant has served on the prosecution a copy of the notice given under paragraph (f) not later than the day it is given to the clerk of the court.

(2)If the notice under subsection (1)(f) states that the defendant wishes to be committed for sentence, the defendant’s lawyer must also have filed with the clerk of the court a written statement signed by the defendant stating that the defendant pleads guilty to the offence and that the defendant acknowledges that the defendant is not obliged to enter any plea and has nothing to hope from any promise, and nothing to fear from any threat, that may have been held out to induce the defendant to make any admission or confession of guilt.

(3)After the defendant is ordered to be committed to be tried or sentenced, there must not be any examination of any person in relation to the committal of the defendant for trial or sentence for the indictable offence.

(4)A document required to be served under subsection (1)(h) may be served electronically.

(5)An order under subsection (1) has effect as if it were an order of justices.

(6)For subsection (1)—

(a)it is not necessary for the written statements to have been filed in the court as mentioned in subsection (1)(c) if the defendant’s lawyer has, in the notice mentioned in subsection (1)(f), included a statement consenting to the written statements not being filed; and

(b)it is not necessary for the written statements to have been given to the defendant as mentioned in subsection (1)(c) if the defendant’s lawyer has, in the notice mentioned in subsection (1)(f), included a statement consenting to the written statements not being given.”

[20] Section 600 of the Criminal Code is headed “Persons Committed for sentence”.  It provides:

“600Persons committed for sentence

(1)When a person has been committed by a justice for sentence for an offence, the person is to be called upon to plead to the indictment in the same manner as other persons, and may plead either that the person is guilty of the offence charged in the indictment or, with the consent of the Crown, of any other offence of which the person might be convicted upon the indictment.

(2)If the person pleads not guilty, the court, upon being satisfied that the person duly admitted before the justice that the person was guilty of the offence charged in the indictment, is to direct a plea of guilty to be entered, notwithstanding the person’s plea of not guilty.

(3)A plea so entered has the same effect as if it had been actually pleaded.

(4)If the court is not so satisfied, or if, notwithstanding that the accused person pleads guilty, it appears to the court upon examination of the depositions of the witnesses that the person has not in fact committed the offence charged in the indictment or any other offence of which the person might be convicted upon the indictment, the plea of not guilty is to be entered, and the trial is to proceed as in other cases when that plea is pleaded.

(5)A person who has been committed for sentence may plead any of the other pleas mentioned in section 598.”

Ground 1

[21] I preface the discussion of this ground of appeal with the observation that in submissions on the s 590AA application, the prosecutor applicant submitted that a plea entered under the registry committal procedure is to be treated no differently from a plea entered before a justice, for the purposes of s 600.[17]  The defendant respondent appears to have accepted that submission as correct.[18]  Certainly no submission was made on her behalf that s 600(2) was inapplicable in her circumstances.  Hence, the learned primary judge was not required to consider and decide whether that provision was applicable.  His Honour proceeded upon the footing that it was.[19]

[22] Appellant’s submissions:  The appellant submits that the power to direct a plea of guilty for an offence under s 600(2) is conditioned upon the court being satisfied that the person duly admitted before the justice that he or she was guilty of the offence.  It is argued for the appellant that that condition was not satisfied here because the appellant never made an admission of guilt before a justice.  What the appellant did was to sign an “Acknowledgement of Plea” document for the purposes of s 114(2) Justices Act subsequent to her lawyer having initiated a registry committal for her by giving written notice in accordance with s 114(1)(f) to the clerk of the court.

[23] In classifying the basis of this ground of appeal within the taxonomy of s 668E of the Criminal Code, the appellant submits that the overlooking of the circumstance that the condition was not fulfilled when the direction was made that pleas of guilty be entered, gave rise to a miscarriage of justice.  It is not alleged that the learned primary judge made a wrong decision on a question of law.[20]

[24] Further, the appellant submits that the position was unaffected by s 114(5).  That provision enacts that an order for committal for trial or sentence made under s 114(1) “has effect as if it were an order of justices”.  This provision, it is argued, regulates the prospective effect of an order under s 114(1) once made.  It does not operate to deem an acknowledgement of plea made under s 114(2) to be a plea of guilty entered before a justice under s 113 of the Justices Act.

[25] Respondent’s submissions:  The respondent accepts that the appellant did not in fact admit guilt before the justice.  She was not in the presence of a justice (or, for that matter, a clerk of the court), when she signed the Acknowledgement of Plea form.[21]  The respondent, however, submits that the clause “that the person duly admitted before the justice that the person was guilty of the offence charged” in s 600(2) is to be interpreted as comprehending a written statement signed by a person stating that he or she pleads guilty to an offence under the registry committal procedure.

[26] The argument for the construction of s 600(2) urged by the respondent proceeds along the following path.  It is centrally dependent upon the operation of s 114(5) Justices Act.[22]

[27] It is suggested that the expression “an order of justices” in s 114(5) is apt to refer to an order for commitment for sentence made by a justice under s 113(1) or s 110A(6E)(b).[23]  Thus, per force of s 114(5), an order made by a clerk of the court committing for sentence under s 114(1) is to have effect in all respects as if it had been made by a justice under s 113(1) or s 110A(6E)(b).  So, therefore, the circumstance upon which s 600(1) Criminal Code is conditioned, namely, that the person have been committed by a justice for sentence, will be fulfilled where a person has been committed for sentence under a registry committal notwithstanding that the person has not, in fact, been committed for sentence by a justice under either s 113(1) or s 110A(6E)(b).

[28] Next, it is submitted that s 600(2) should be interpreted alike so that the clause in it to which I have referred is taken to include the circumstance where the plea is entered in writing under the registry committal procedure.[24]  It is argued that the clause should be so interpreted in order to ensure that s 600(2) is given a meaning consistent with that given to s 600(1);[25] and to ensure that the registry committal procedure is accommodated by s 600(2).  The latter, it is said, is a desirable outcome in that it would forestall contrived pleas of guilty under that procedure.

[29] Discussion:  The language in which the conditioning clause in s 600(2) is cast is clearly expressed.  It speaks of the procedure for which ss 104(2) and 113(1) of the Justices Act provide in which the defendant is addressed by the justice in terms of s 104(2)(b) and, in answer to the question put, responds by saying that he or she is guilty of the charge.

[30] First, I would reject the proposition, hinted at in submissions for the respondent, that upon enactment of the registry committal procedure, s 600(2) ought thereafter be interpreted to accommodate it.  This proposition is one that is independent of s 114(5).

[31] The authorities to which the respondent took the Court, namely, the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd[26] and the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority[27] support an approach to statutory interpretation which, for ascertainment of meaning, draws upon context in its widest sense and strives for consistency with the language and purpose of a statute.

[32] Those authorities, of course, command the greatest of respect; but, to my mind, they are not supportive of this particular proposition.  Here, neither s 600(2), nor s 600(1), was amended at the time of enactment of the registry committal procedure provisions.  Each is in a form which pre-existed that enactment.  Hence, no occasion for resort to context at the time of enactment in order to interpret s 600(2) arises.  Further, the enactment was by way of amendment to the Justices Act, not the Criminal Code.  Hence, no issue of inconsistency of meaning within the one statute arises.

[33] I now turn to s 114(5).  This provision, too, is clearly expressed.  Plainly, it is concerned with how an order made by a clerk of the court under s 114(1) thereafter takes effect.  It speaks prospectively; not retrospectively.  It is not cast in the language of a deeming provision such as might give to the procedure by which a plea of guilty is made under s 114(2) the identity of the procedure under s 113 in which a defendant admits guilt before a justice.

[34] I do, however, accept that respondent’s submission, which the appellant concedes, that s 114(5) operates with effect that a person who is committed for sentence under the registry committal procedure is a person who has been committed by a justice for sentence for the purposes of s 600(1).  In support of the consistency of meaning within s 600 argument, the respondent contrasts the use of the indefinite article in the term “a justice” in s 600(1) with the definite article in the term “the justice” in s 600(2).  The latter, it is suggested, must be referenced to the circumstance when a person has been committed by a justice for sentence under s 600(1) as that circumstance is enlarged by s 114(5).

[35] I am unpersuaded that the use of the definite article in s 600(2) has the effect for which the respondent contends.  It is insufficient, in my view, to justify what would be a linguistic contortion of the express words of the condition in that section that the person have duly admitted guilt before the justice.

[36] It is true, as the respondent observes, that s 600(2), interpreted conformably with the unambiguous language in which it is expressed, has no application to pleas of guilty under the registry committal procedure.  That, too, is insufficient reason for rejecting the appellant’s interpretation.  Had the legislature been minded to ensure that s 600(2) applied to the procedure, then it could have amended it accordingly when the provisions for the procedure were enacted.

[37] The respondent’s concern that the registry committal procedure might be exploited, is, I think, rather misplaced.  There is no apparent significant advantage or benefit for a defendant to secure a commitment for sentence by pleading guilty under the procedure, while, at the same time, harbouring an intention of pleading not guilty at sentence.

[38] For these reasons, I would uphold this ground of appeal and reject the respondent’s arguments against it.  I would add that there are two other considerations which incline me to reject those arguments.

[39] The first is that the procedure under s 113 where a person duly admits guilt before a justice requires the justice, first, to address the defendant saying:

“Do you wish to say anything in answer to the charge or enter any plea?”[28]

[40] There is, at that point, an opportunity for the defendant to speak.  It is not inconceivable that a person might respond to the question by making a statement which discloses that the plea of guilty made is based upon the person’s misunderstanding of the law as it applies to the facts.  There is no corresponding opportunity under the registry committal procedure.

[41] The second is that if s 600(2) were to apply to the registry committal procedure, a plea of not guilty made after a commitment for sentence would not be one to which s 600(4) could apply in full.  That provision directs that the plea of not guilty be entered if either of two circumstances exist.  The second of them is dependent upon an examination by the court of the depositions of the witnesses from which, it appears to the court, that the person has not, in fact, committed the offence.  Under the registry committal procedure, written statements of evidence are filed with the clerk of the court.[29]  These need not be sworn statements.  There is no provision in s 114 which confers on a written statement of evidence the status of a deposition.[30]

Ground 2

[42] In light of the success of Ground 1, it is unnecessary to consider this ground of appeal.  Nor is it necessary to rule upon the applications for leave to adduce further evidence.

Disposition

[43] Ground 1 having succeeded, the appeal must be allowed.  The convictions recorded on 9 March 2015 must be set aside.  The order made on 10 December 2014 must be set aside also.  If the appellant is re-arraigned on the indictment, she may, at that point, renew her plea of not guilty to the counts on it pursuant to s 600(5) Criminal Code.[31]  Consistently with these reasons, s 600(2) will not apply to such pleas.

Orders

[44] I would propose the following orders:

1.Allow the appeal.

2.Set aside the convictions recorded on 9 March 2015.

3.Set aside the order made on 10 December 2014 that pleas of guilty be entered to the charges on indictment SUP37/14 notwithstanding the appellant’s pleas of guilty made on 24 November 2014.

[45] PETER LYONS J:  I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree with his Honour’s reasons, and with the orders which he proposes.

[46] DALTON J:  I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree with his Honour’s reasons, and with the orders which he proposes.