XIY v Commissioner of Police[2024] QCHC 15

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is a consolidation of two appeals – a notice of application for extension of time for filing notice of appeal to the Childrens Court, filed 12th of June 2024, in respect of offences for which pleas were entered on 17 July 2023 and 8 September 2023, for which the appellant was sentenced on 18 October 2023 (1597/24), and a second appeal for matters for which the appellant pleaded on 19 March and 16 May 2024 and was sentenced on 16 May 2024 (1596/24). 
2. [2]
   The offences relevant to the application for leave to appeal out of time (1597/24) are as follows: 

3. [3]
   The sentence imposed was nine months detention, served by way of a conditional release order for a period of six months, with a special condition to abide by a curfew between the hours of 7 pm and 7 am, unless in the company of a parent/grandmother or a person authorised by the chief executive. 
4. [4]
   There was also an order that a probation order imposed on 23 December 2022 be varied and extended for a period of 10 months with special conditions. 
5. [5]
   There was a declaration of the child as a serious repeat offender and a conviction was recorded. 
6. [6]
   In respect of the second appeal (1596/24), the following offences are the subject of that appeal: 

7. [7]
   The sentences included a reprimand, and nine months detention served by way of conditional release order for a period of six months, with a special condition to abide by a curfew between the hours of 7 pm and 6 am, unless in the company of a mother, aunt or a person authorised by the chief executive.
8. [8]
   The probation order imposed on 23 December 2022 and varied on 18 October 2023 was discharged and the appellant was resentenced to 12 months probation. 
9. [9]
   On resentence, the appellant was sentenced to nine months detention, served by way of conditional release order imposed on 18 October 2023, extended for a period of six months with a special condition to abide by a curfew during the hours of 7 pm and 7 am, unless in the company of a parent/grandmother or a person authorised by the chief executive. 
10. [10]
    No conviction was recorded.
11. [11]
    In the light of the material that has been provided by the appellant^[1] it is clear (and the respondent does not oppose this) that leave should be granted in respect of appeal 1597/24 to appeal out of time. 
12. [12]
    The reason that leave is granted is that the material I have identified, which is a series of reports contained in the appellant’s material,^[2] indicate the significant intellectual handicap of the appellant, and the report of Dr Zeeman^[3] dated 15 July 2024 identifies that the appellant is unfit for trial. 
13. [13]
    The material that I have just referred to is partly material that is additional rather than fresh evidence, namely the neurodevelopmental report dated 6 October 2023, and the psychological report dated 19 September 2023, and partly fresh evidence, namely the speech and language pathology assessment dated 24 November 2023^[4] and the fitness for trial assessment of Dr Zeeman dated 15 July 2024.^[5] 
14. [14]
    It is, in my view, clear that new and additional evidence, or fresh and additional evidence, as it is sometimes referred to, is material that should be admitted on this appeal.  Particularly, of course, as it culminates in a report that indicates that the appellant is unfit for trial.  Accordingly, pursuant to Justices Act 1886 (Qld) s. 223(2), I give leave to adduce those specific items of evidence contained in Exhibit 2 of this appeal^[6] as additional and/or fresh evidence in respect of this appeal.  Ultimately that material, of course, is critical to the disposition of this appeal, given the conclusion of the report by Dr Zeeman.^[7]
15. [15]
    The third preliminary issue to add two additional grounds of appeal.
16. [16]
    In respect of each of the appeals (1596/24 and 1597/24), the identified ground 1 was:-

    1. the sentence was manifestly excessive.
17. [17]
    The appellant seeks to amend each of those notices of appeal to add the following grounds:-

    2. the appellant’s convictions were a nullity by reason of the irregularity arraignment. 
    3. a miscarriage of justice was occasioned by reason of the appellant’s lack of capacity and unfitness at the time of arraignment and sentence. 
18. [18]
    The respondent to the appeal (Commissioner of Police), entirely appropriately in my view, acknowledges and accepts that those additional grounds should be added to the notices of appeal, and also (again, entirely appropriately in my view) concedes that the appeal should succeed in respect of each appeal, on each of grounds 2 and 3.
19. [19]
    In a practical sense, given that concession, ground 1 falls away in each case and it is unnecessary to deal with it.
20. [20]
    Accordingly, leave is granted to add the proposed grounds 2 and 3 to this appeal. 
21. [21]
    The appeal, of course, proceeds pursuant to Justices Act s. 222 (1) and as the appellant correctly identifies, this requires a review of the proceedings, the evidence and the decision of the magistrate giving due weight to the magistrate’s decision, and some legal, factual, or discretionary error needs to be identified unless the result is plainly unreasonable or unjust.^[8]
22. [22]
    In addition, of course, I have granted leave to admit additional and fresh evidence as identified above.
23. [23]
    The proceedings are briefly but appropriately summarised by the appellant in his outline^[9] as follows:-

“4. On 17 July 2023, pleas of guilty were indicated in respect of 10 charges.  On 8 September 2023, the appellant was arraigned in respect of 13 charges and a pre-sentence report was ordered.  On 18 October 2023, a charge in the alternative for which a plea of guilty had been indicated was discontinued by the prosecution and the appellant was sentenced in respect of the remaining 12 charges.  The learned magistrate imposed a nine-month detention order to be served by way of a conditional release order of six months’ length.  A probation order made on 23 December 2022 was extended by 10 months.  No convictions were recorded, and 136 days had been spent in pre-sentence detention.  The appellant was declared a serious repeat offender.

5.  On 19 March 2024, the appellant was arraigned in respect of six charges, and on 16 May 2024 he was sentenced in respect of them.  A further fresh charge of breach of bail condition was also dealt with on that occasion.  The court imposed another nine-month detention order to be served by way of a six-month conditional release order in respect of the group of six charges.  In respect of the breach of bail condition, the appellant was reprimanded.  No convictions were recorded.  Further, the conditional release made on 18 October 2023 was extended by six months, and the probation made on 23 December 2022 was discharged and the appellant was resentenced to a further 12-month probation order.”

24. [24]
    I note that the notices of appeal in each case were filed on 12 June 2024 and the orders were subsequently stayed. 
25. [25]
    The appellant argues (and the respondent accepts) that the convictions and pleas of guilty ought to be set aside in the light of the new and additional evidence for which leave has been granted to adduce in this appeal. 
26. [26]
    Although a defendant who pleads guilty or admits the truth of a complaint has no right of appeal against conviction,^[10] this court does, I accept, have jurisdiction on appeal to consider whether the plea was an unequivocal plea of guilty.^[11] An unequivocal plea of guilty should be regarded as a plea of guilty or the admission of the kind referred to in Justices Act s. 222 (2)(c).^[12]
27. [27]
    It is common ground that the relevant common law test for fitness for trial is as set out in R v Presser [1958] VR 45, namely whether an accused “…fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice”.  Those minimum standards include that the accused “…needs to be able to understand…the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge.  Where he has counsel, he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and if necessary, telling the court what it is.”.^[13]
28. [28]
    It is clear, of course, that there is a miscarriage of justice which follows where a defendant has been put to trial (or in this case sentenced as a result of pleas entered) where they are not or might not have been fit to plead and stand trial.^[14]
29. [29]
    In respect of these appeals, the court had a pre-sentence report before it on each occasion on which the appellant was sentenced in relation to both files.  The learned magistrate was referred to the appellant’s diagnosed intellectual impairment and the reports of 19 September and 6 October 2023 were in existence at the time of the pre-sentence reports.  The speech and language pathology assessment was commissioned by Youth Justice between sentences and was provided to Dr Zeeman who concluded in her assessment that the appellant was unfit for trial in the report dated 15 July 2024.
30. [30]
    Dr Zeeman’s report is comprehensive but relevantly, the appellant’s outline^[15] identifies the following matters:-

    1. reliance upon the prior statement of the appellant being assessed to have a full-scale IQ of 54;^[16]
    2. reference to the existing diagnoses of attention deficit hyperactivity disorder, provisional diagnoses of oppositional defiant disorder and conduct disorder;^[17]
    3. Previously assessed borderline intellectual level asserted with psychometric tests;
    4. The appellant’s age equivalent was eight and a-half years, which was interpreted to signify a mild intellectual impairment;^[18]
    5. The appellant had secondary complex post-traumatic stress disorder;^[19]
    6. The appellant effectively failed components of the Presser test, especially as to his ability to understand the proceedings and instruct his lawyers.^[20]  Dr Zeeman otherwise opined that the appellant did not meet the minimum Presser criteria.^[21]
31. [31]
    It is clear in my view that the court should have been aware of, and the learned magistrate was certainly alerted to, the intellectual challenges that the appellant faced.
32. [32]
    In the light of those matters that have been identified, the process under which the appellant’s pleas were taken was a process which I am satisfied results in those convictions being a nullity by reason of the irregular arraignment.
33. [33]
    The appellant’s outline, again, identifies the following matters which I shall, where appropriate, identify and refer to.

“On 17 July 2023, the pleas of guilty were indicated and then the appellant was arraigned prior to the sentence hearings on 8 September 2023 and 19 March 2024, in each case, of course, for the purpose of ordering a pre-sentence report.

Youth Justice Act principle 6 states: -

6. a child being dealt with under this Act (A) should have procedures and other matters explained to the child in a way the child understand”.

34. [34]
    The Criminal Code Act 1899 (Qld) (Criminal Code) s. 597C provides the process for pleas to matter on indictment and identifies the procedures on arraignment in respect of indictable offences dealt with summarily.^[22]
35. [35]
    Justices Act s. 145 identifies how a defendant is to be asked to plead and in particular, at s. 145 (2) where the defendant is legally represented, the court must be satisfied the defendant has obtained legal advice in respect of each of the complaints and is aware of the substance of each of the complaints.
36. [36]
    The appellant identifies the following features in respect of the arraignment on 17 July 2023, namely:-^[23]

    1. there was an indication of pleas of not guilty to two charges from the appellant’s solicitor,
    2. the appellant’s solicitor indicated pleas of guilty to all other charges,
    3. the appellant was not asked to confirm any of the pleas,
    4. the learned magistrate did not particularise any of the offences,
    5. no parent or guardian was present,
    6. the verdict and judgment record reflects this court appearance as being when pleas of guilty were entered for 10 of the offences.^[24]
37. [37]
    For the arraignment on 8 September 2023, the appellant again appeared via video link and the following features were identified by the appellant:-

    1. there was an indication of a plea of guilty from the appellant’s solicitors;
    2. the learned magistrate read the short title of the offences and did not read the full charge, location or dates;
    3. the defendant’s response was “Yeah”.  It was not “Guilty” or “Not guilty”;
    4. during the mention, the matter was adjourned for four minutes while instructions were taken on a further charge of common assault;
    5. the mention resumed and there was an arraignment on the further charge.  The appellant again repeated the plea as “Yeah”.
38. [38]
    For the arraignment on 19 March 2024, the defendant appeared in person and on that occasion:-

    1. there was an indication of a plea of guilty by the appellant’s solicitor;
    2. the learned magistrate simply described the charges as criminal offences without particularising any of them;
    3. again, the appellant’s response was “Yeah”, not “Guilty” or “Not guilty”.
39. [39]
    On 16 May 2024, the further charge of a breach of bail condition was before the court.  No plea was taken in respect of it and the learned magistrate received an affirmative indication from the appellant’s solicitor that it was a plea to all charges”.^[25]
40. [40]
    The appellant submits and I accept (as does the respondent) that the entering of pleas on the above occasions involved irregularities to the point of making the convictions in each case a nullity.  There was a lack of compliance with Justices Act s. 145.  The appellant, literally, did not enter a plea of guilty on those occasions, and it is argued (and I accept) that the learned magistrate could not have been satisfied that the appellant was aware of the substance of the charges in each case as required. 
41. [41]
    It was the same learned magistrate in respect of each of the occasions, and there was, I accept, sufficient material as to the appellant’s intellectual disability before the court and referenced by the learned magistrate to have indicated that a far more cautious approach was appropriate in the circumstances.  The appellant, of course, was at the time a 14 and 15 year of child, and as the material has previously identified, with the intellectual capacity of a child of approximately eight years.
42. [42]
    In the light of those submissions, I accepted, as identified by me, in the light of the concession entirely appropriately made by the respondent, that each of grounds 2 and 3 on the appeal were conceded. The appropriate course then is, having granted leave, as I have already identified, for the appeal out of time in file number 1597/24, leave to admit additional and fresh evidence in respect of each appeal file, and leave to add grounds 2 and 3 to each appeal file, in each case, I make the following orders: 

    1. Appeal granted;
    2. The sentences and other orders imposed by the learned magistrate on 18 October 2023 (1597/24) and 16 May 2024 (1596/24) are in each case vacated and set aside; 
    3. Remit all charges back to the Childrens Court (magistrate) at Cairns to proceed according to law before a different magistrate. 
43. [43]
    I note for the record that Mental Health Act 2016 (Qld) s. 172 provides the appropriate process (particularly in light of all of the material which has been admitted by leave on these appeals) and as the respondent has identified, there are other charges still before the Childrens Court, which appropriately should be amalgamated with these charges being remitted back, and for the Childrens Court (magistrate) to consider proceeding under section 172 of the Mental Health Act in respect of all matters.