DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   At an earlier hearing of this application for criminal compensation, the quantum was assessed at $13,500.00. The matter was adjourned as a question arose as to what date the respondent was convicted for the purposes of determining when the limitation period expired. Pursuant to s 40 of the Criminal Offence Victims Act 1995 (Qld) (the “Act”), an application is required to be brought within three years of a conviction after trial.  The term “trial” is defined under the Act as “includes a proceeding in which a person is sentenced.”^[1]

2. [2]
   According to the endorsement on the indictment, the respondent pleaded guilty before his honour Judge Boulton on 14 May 2004 to a five count indictment. The allocutus was administered on that date pursuant to s 648 of the Criminal Code 1899 (Qld) as to whether the respondent had anything to say why sentence should not be passed.  Two of the offences were assaults on the applicant. The endorsement does not accord with the transcript in relation to the pleas and the allocutus, but the endorsement is the relevant document for present purposes. There was a dispute about the facts of a robbery of the applicant by the respondent.  All matters were adjourned to another date. On 10 August 2004, the sentence proceeded before me and a nolle prosequi was presented in relation to the robbery.  The remaining two offences are not relevant for present purposes.

3. [3]
   On 10 August 2004, the respondent was sentenced to a term of imprisonment in relation to the assault charges on the applicant. The present application was filed on 21 August 2007. Therefore, if 10 August 2004 is the date that the cause of action arose, the claim is out of time. An application to extend time is necessary even if the point is not taken by the respondent.^[2] It was held in Jacob’s case that bringing an application within the three year period was a condition of the right to apply for compensation.  For present purposes, unless the earlier date of 14 May 2004 is the relevant date, the application for compensation is out of time.  If it is the earlier date, there may be grounds established under the Limitation of Actions Act 1974 to extend the time to 21 August 2007. The later Act becomes relevant by virtue of s 41 of the subject Act.

Nature of Legislation

4. [4]
   The definition of “convicted” under the Act means “found guilty, or having a plea of guilty accepted, by a court”. The provisions of s 40 do not refer directly to merely a plea:

40 Time within which applications for compensation must be made

3. (1)
   An application to a court for a compensation order against a convicted person must be made—

   (a) within 3 years after the end of the convicted person’s trial;or

   (b)…

   (c)with the court’s order under section 41—at any other time.

However, the word “trial” is defined as including a “proceeding in which a person is sentenced.”

5. [5]
   In order to extend the time under s 40, the provisions of s 31(2) of the Limitation of Actions Act 1974 (Qld) are relevant.  The relevance of the latter legislation is referred to by Davies JA in Jabob’s case.^[3] The right of action is one aspect of that section.  Also, a material fact of a decisive nature should not be known, for present purposes, before the limitation period expires.^[4] It is important to know then when the cause of action arose, on the date of the plea or the date of sentence.  The material fact in the present case is that neither the applicant nor her solicitor knew that the plea of guilty occurred on 14 May 2004 until the Certificate of Conviction was obtained on 28 May 2007, more than three years after the plea.  In that event, the time could be extended until to 28 May 2007 or relevantly 21 August 2007 when the application was filed. Parties preparing an application for an extension of time should be aware of the requirements of s 31(2).

Submissions and legal principles

6. [6]
   The written submissions of the applicant have been most helpful.^[5] The following propositions are put:

1. (a)
   a plea of guilty amounts to a formal concession of the existence of every ingredient necessary to constitute the offence.^[6]

2. (b)
   “The administering of the allocutus constitutes an acceptance by the court of the jury’s verdict or the accused’s plea of guilty (as the case may be) and thereafter the matter before the court is one of sentence… In other words, the accused person stands before the court to be sentenced once the court has accepted the guilty verdict or plea by administering the allocutus”.^[7]

3. (c)
   That once the allocutus is administered, the court has accepted the plea as a determination of guilt.

7. [7]
   It is submitted that the acceptance of the plea of guilty can be manifested in various ways. For example, by administering the allocutus or by indicating that submissions can be made about sentencing.^[8] The case of Director of Public Prosecutions v Hai Minh Nguyen; DPP v Duncan^[9] was referred to.  In distinguishing that case, Mr Saggers for the applicant submitted that the defendants in Nguyen and Duncan^[10] were not remanded for sentence on the relevant date. The following passages were referred to:

 The test in all cases is whether the conduct relied upon, considered in all the circumstances, indicates unequivocally that the accused has been found guilty and it is conceivable that there may be cases where a “remand” order is made where that may not be so – for example, the term might be used inappropriately.  For present purposes, however, I will assume that, as a matter of law, where a person has pleaded guilty and the person has been remanded for plea and sentence or sentence, that act provides an unequivocal indication that the accused has been found guilty.^[11]

 and

 As to the administration of the allocutus, “in the ordinary course”, that will indicate that the court has found the defendant guilty, but whether it does in a particular case will depend on all the circumstances.^[12]

8. [8]
   His Honour went on to find that the putting of the allocutus and the adjournment for plea and sentence were equivocal as to whether the relevant judge had found the defendant guilty.^[13] However, all of the circumstances must be looked at. In Nguyen’s case, the accused had pleaded guilty and the allocutus put on 14 September 2006. Pleas or submissions on sentence were heard in September 2007 and the accused were remanded in custody for sentence. Sentence was handed down on 24 September 2007.  At first instance, the County Court judge found that until each defendant was remanded for sentence after hearing the evidence on the plea and prior to sentence, it was equivocal that the accused had been found guilty.  An application before Smith J to judicially review that decision was refused.  Smith J sought to distinguish Shillingworth’s case on the basis that Shillingworth was remanded in custody pending sentencing after the allocutus was put, whereas in the case before Smith J, the allocutus was not followed by a remand order. In the present case, it is not established whether his honour Judge Boulton on 14 May 2004 was acting as a trial judge for the plea. If a judge was acting as a listings judge it would have been unlikely that he had applied his mind to a finding of guilty being appropriate.^[14] In the present case, the respondent was represented by counsel.  The endorsement on the indictment reads;

Disagreement as to facts re: count 5.

Order: Sentence and plea re count 5 adjourned to Thursday 20/5/2004.

9. [9]
   There was no endorsement regarding bail or remand but a perusal of the transcript on that date shows that bail was enlarged.^[15]  It is clear that if someone is remanded after hearing evidence what the offender did, then that is an unequivocal indication that a judge has found the accused guilty.^[16] Aickin J went onto say that to “remand for sentence, which means remand in custody unless bail is specifically granted”.^[17] That was taken to mean by Jacobs J in the same case^[18] to mean sentence is not necessary before there is a conviction.  An offender may be released on a recognizance and required to appear for judgment.  A similar view was taken by Young CJ in DPP v McCoid:^[19]

What needs to be emphasised in that passage is that the remanding of an accused person for sentence, whether in custody or on bail, is an unequivocal indication that the accused has been found guilty.  Reference may also be made to the judgment of Jacobs J, particularly (137 CLR), at p.316;…

Put in another way, the point is that there must be some act or determination by the court before it can be said that a person has been convicted; see R v Tonks and Goss [1963] VR 121, at pp. 127-8.

10. [10]
    There was a dispute about the facts in relation to the robbery offence which was subsequently not proceeded with before me. There is no suggestion that Judge Boulton had heard any submissions on the sentence. In the case of R v Stone^[20] Hunt AJA discussed the difference between a conviction on a charge and the grounds necessary to establish autrefois convict.  His Honour referred to the relevant meanings of “conviction”. 

(1)a finding of guilt by verdict or by acceptance of a plea of guilty, and

(2)a final disposal of the case by finding of guilt and the passing of sentence. In the second situation, it is said that the passing of the sentence perfects the conviction.

It must be remembered that Stone’s case and Maxwell v The Queen^[21] were concerned with a plea of autrefois acquit.  Certainly the findings by Dawson and McHugh JJ required a conviction and sentence to be established before autrefois acquit was available.^[22]  The plea is bound up with the notion that an offender should not be punished twice for the same crime.  Thus, it is implicit in that notion that the offender has been sentenced on the first occasion.  This was the issue in those cases.  Hunt AJA also referred to the principle that:^[23]

… an accused is convicted where he is found guilty by the jury or where he pleads guilty and the judge has taken some step which indicates an acceptance of that plea as establishing his guilt.

11. [11]
    It could be said that by the administration of the allocutus and adjourning some of the matters for sentence and one for further consideration showed that the pleas entered on 14 May 2004 had been accepted as establishing the guilt of the respondent. One has to look at the context of the present Act. Section 24 provides:

 24 Court may make an order compensating someone injured by personal offence

3. (1)
   This section applies if someone (the convicted person)—

 (a) is convicted on indictment of a personal offence; or

 (b) …

3. (2)
   The person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence.

12. [12]
    The term “convicted” is defined as meaning “found guilty, or having a plea of guilty accepted, by a court.”^[24] This is required to be “a proceeding in which a person is sentenced”.  The entering of the plea and the administration of the allocutus is part of that sentencing process.  It took place on 14 May 2004.  The facts relied upon by the prosecution were given on 10 August 2004.  Consistent with the principle in Chong’s case^[25] the cause of action arises when all of the events necessary to constitute it have occurred.  It is only after the conviction that an injured person can make the claim. Chong pleaded and was dealt with on the same day. As was observed by Demack J in Chong’s case, the Act presently under consideration contains its own time limitation.  His honour was dealing with the earlier legislation under s 663B of the Criminal Code.^[26]

Conclusions

13. [13]
    There is nothing in the High Court decisions referred to which impinges upon the decision of Shillingsworth.^[27]  Once the allocutus is administered, for present purposes under the Act, the pleas are accepted and convictions follow.  That was part of the sentencing process for the purposes of the limitation provisions of the Act.  It was not finalised that day by pronouncement of the punishment but the cause of action was established as at 14 May 2004.  In that event the material fact of a decisive nature being discovered on 28 May 2007, the limitation period can be extended for a year past that date.  As the application for compensation was filed on 21 August 2008, the period is extended to that date.

Orders

1. The limitation period is extended to 21 August 2008.

2. It is ordered that the respondent do pay to the applicant the sum of $13,500.00 compensation.