The Queen v Age & Fewquandie[2006] QDC 198

[2006] QDC 198

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

THE QUEEN

v.

DWAYNE BRADLEY AGE and

LEIGHA MAREE FEWQUANDIE

MOUNT ISA

DATE 20/06/2006

EXTRACT OF PROCEEDINGS

Catchwords

Criminal law - leave of Court to withdraw a plea of guilty to wilful damage before sentence

RULING

HIS HONOUR:  The groundwork was done yesterday, of course, so this is not surprising. From time to time a sentencing Judge entertains misgivings about guilty pleas and considers refusing to accept them on the basis of some apparent technical difficulty. Experience is that such a course may be highly inconvenient to the parties, in particular the defendant who may not wish to be subjected to the delay, trouble and cost which a trial might involve.

Usually in such cases the defendant has the benefit of competent legal representation and is accepting that in a moral sense there is guilt. In the present matter the Court entertained no concerns, having no knowledge whatever of the circumstances when last Friday Ms Fewquandie entered guilty pleas when arraigned in respect of a charge of assaulting a police officer, Constable Young, in the execution of his duty, and of wilfully and unlawfully damaging a police vehicle. She had a co-accused, Dwayne Bradley Age, in count 1, a charge of assault occasioning bodily harm upon Stephen Lloyd Age. Sentencing was adjourned until completion of the trial on count 1.

With the advantage of additional time to consider the matter, it became clear to Mr Briggs, who is subject to the great demands of presenting the defence side in the criminal list for this sittings almost single-handedly, that there was a problem in relation to the wilful damage charge emerging from his consideration of the principles expounded in Zischke [1983] 1 Queensland Reports 240. It is established that there must be some actual damage or impairment of the functioning of an item for the charge to properly be preferred. What was said against Ms Fewquandie, it emerges, is that she had spat upon the vehicle. It is unclear to me whether the target was it or the police officer. It does not matter, it seems to me. It is not suggested,as per Zischke, that there was any damage to the vehicle.

It is established that a plea of guilty may be withdrawn by Maxwell v R (1995) 184 Commonwealth Law Reports 501 at 509-10 and 522, whereof McPherson JA said in Mundraby (2004) QCA 493, "It was said that a plea may with leave be withdrawn at any time before sentencing has taken place."  That is the situation here. His Honour went on to say that "To obtain such leave it was incumbent on the appellant to show that a miscarriage has occurred or would occur if he was not allowed to withdraw his plea. See Boag (1994) 73 Australian Criminal Reports 35, 36 to 37."

The test indicated is satisfied here in my opinion and in the exercise of the Court's discretion I will set aside the plea of guilty entered by Ms Fewquandie on the 16th of June this year to count 3. It is anticipated that the prosecution may enter a nolle prosequi in respect of that count. It is not entirely clear to me that that ought to be preceded by a re-arraignment and not guilty plea, but that is what counsel appear to have worked out together. I might mention that I am grateful to Mr Finch and Mr Briggs for their cooperation in this matter. The essentials of what is happening today had been identified and endorsed at a mention yesterday.

END OF EXTRACT