DISTRICT COURT OF QUEENSLAND

1. [1]
   Bradley Brett Logan has been charged with two counts of indecent dealing with a child under 16 with circumstances of aggravation and two counts of rape. The offences are alleged to have occurred between 01 January 2005 and 23 December 2005 in respect of Count 1 and on or about 23 December 2005 in respect of Counts 2 to 4, at Palm Island. The complainant child is an infant.

The Application: Change of Plea. 

2. [2]
   The application primarily focussed on a submission that the plea of guilty entered on behalf of the accused in the Magistrates Court at the conclusion of a committal proceeding on 08 March, 2006 should not stand and that a not guilty plea be entered in lieu thereof. Submissions were also made in respect of the admissibility of alleged confessions made by the accused to the police.

3. [3]
   The matter was heard on 25 July 2008 and at my request further evidence was obtained as to the detail of the proceedings before the Magistrate, particularly in respect of the manner in which the plea of guilty was taken and recorded. On 1 August 2008 I heard further submissions and admitted further evidence as to the practice in the Magistrates Court with respect to the taking of pleas on committals (as distinct from summary offences). On 22 August 2008 I heard further submissions and a tape recording of the proceedings in the Magistrates Court was played in Court. By this time the Crown had conceded that the plea of guilty taken in the Magistrates Court could not stand.

4. [4]
   The accused had been in custody since March 2006 and no application for bail had been made. I expressed concern about the undesirability of an accused to be kept in custody for such a long period (nearly two years and six months) from the date of his being charged with the offences to 22 August 2008, particularly where it seemed he had received very little attention from the solicitors who then acted for him. His present solicitors, who have instructed counsel on this application, have acted with expedition since being retained to act for the applicant.

5. [5]
   I determined that the applicant should be allowed to withdraw the plea of guilty entered in the Magistrates Court. I reserved the reasons for judgment because it involved matters of practice within the Magistrates Court upon which I considered some observations might be helpful, subject to the expectation – at that time - that the practice generally in respect of committal proceedings might change as a consequence of the outcome of the pending review of the practice and jurisdiction of the Queensland Courts (known as ‘the Moynihan Inquiry’). However, that outcome is still unknown and consequently I have decided to give these reasons for judgment in any event.

The Application: Admissibility of Evidence.

6. [6]
   As for the disposal of the balance of the application, this stands adjourned until the forensic testing of specimens collected in the course of the police investigation has been completed. The Crown had conceded that the only evidence against the accused is either his confessions in the record of interview (submissions were made in the course of the hearing but have effectively not been completed because of the focus on the issue involving the plea) and, potentially and speculatively at this stage, any forensic evidence that might arise from the examination of specimens. There may be real issues in relation to the record of interview upon which it is proposed that further submissions be heard before I determine that part of the application.

7. [7]
   The accused was admitted to bail on 22 August 2008, it being appropriate in the circumstances to release him from custody. The grant of bail, which is the subject of special conditions, was not opposed by the Crown.

The Proceedings in the Magistrates Court.

8. [8]
   Evidence was provided on affidavit as to the practice in the magistrates Court in respect of committal proceedings. It appears that it is a matter for each Magistrate as to the practice they adopt or the Forms (if any) that they use on completion of the evidence in committal proceedings.

9. [9]
   In this case, a pro forma Form was completed by the Magistrate who presided at the committal proceeding. There was no cross-examination of witnesses at the committal and it was one conducted as a ‘hand up’ committal, without the necessity for the Magistrate to consider the evidence. The Form, so far as is relevant, after formal matters have been recorded on it by the insertion of the names of the defendant and the persons representing the prosecution and defence; the file numbers; and the basis upon which the committal has been made (in this case without formal consideration of the material tendered in the proceeding), states the following (with the insertion by the Magistrate of handwritten deletions and words):

“THE DEFENDANT IS FORMALLY CHARGED AND IS ADDRESSED BY ME IN TERMS OF S.104 OF THE JUSTICES ACT.

‘You will have the opportunity to give evidence before me and to call witnesses.  But first I am going to ask 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.  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 admissions or confession of guilt.  Anything you say will be taken down and may be given in evidence at your trial.

10. [10]
    It would be apparent from the content of the Form that the defendant is recorded as not having replied to the formal charge and warning by the Magistrate made in accordance with s.104 of the Justices Act 1886 (‘the Act’).

11. [11]
    The tape recording of the proceeding in the Magistrates Court, in precis, shows the following sequence of events:

“Identification of accused…

Hand-up…

Appearances (Doolan and the defendant’s solicitor – ‘C’)…

Four charges read…

Recording of evidence statement…

Application made for proceedings by S.110A Justices Act…

C states  consent to s.110A…

Statements of prosecution witnesses admitted…

Exhibits tendered …

C consents to committal without cross-examination…

Accused told to stand…

Four charges formally read…

Section 104 read…

Magistrate:  ‘Now do you wish to say anything in answer to the charge?...

Defendant: ‘Yes, yes, Your Honour…’…

Interrupted by C who states: ‘My client has indicated that he will be pleading guilty in the District Court Townsville to all four charges’ …

Magistrate: ‘In that case you are committed for sentence to the criminal sittings of the Townsville District Court on a date to be advised by the Director of Prosecutions.’…

Remanded in custody (no bail application made)…”

12. [12]
    No plea was entered by the defendant and he was interrupted by his solicitor when he commenced to state that he wished to say something in answer to the charge. C used words in respect of a plea of guilty in a prospective sense; that is, he informed the Court that the defendant had indicated that he would plead guilty when he got to the District Court. Hence the issue was whether, in those circumstances, any plea of guilty was properly taken.

The Act and the Criminal Code (Qld).

13. [13]
    The Act in sections 104, 105, 111 and 113 provides for the procedure to be followed in the taking of a plea from a defendant in a committal proceeding. I emphasise here that I am not concerned about summary offences and pleas taken in respect of them, but solely with pleas of guilty taken at committal proceedings on indictable offences. Sections 72 and 110A also have relevance to committal proceedings, but not specifically in respect of the issue that I am dealing with here.

14. [14]
    Section 104 of the Act provides as follows:

“104 (Statement of Defendant)

After the examination of all the witnesses on the part of the prosecution is completed, the justices or one of the justices before whom the examination has been completed shall, without requiring the attendance of the witnesses, read, or cause to be read to the defendant, the depositions taken against him, and shall say to him these words or words to the like effect:-

‘Having heard the evidence, do you wish to say anything in answer to the charge?  You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing, and may be given in evidence upon your trial.  You are clearly to understand that you have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any admission or confession of your guilt, but whatever you now say may be given in evidence upon your trial, notwithstanding any such promise or threat.’

And whatever the defendant shall then say in answer thereto shall be taken down in writing and read to him and shall be signed by the Justices and by the defendant, if he so desires and shall be kept with the depositions of the witnesses, and shall be transmitted with them to the proper officer as hereinafter provided.”

15. [15]
    Hence the formal procedure in Queensland is that the defendant is formally charged by the words that I have referred to above. His plea (if any) is then taken and recorded together with anything else that he might wish to say in reply. He is not obliged to plead or say anything at all, nor to sign the record created by the Magistrate. If he enters a plea of guilty he is then addressed by the words prescribed in s.113 of the Act and committed for sentence.

16. [16]
    Section 105 of the Act provides as follows:

“105 (Statement may be put on evidence at trial)

Afterwards upon the trial of the defendant any such statement made by him may, if necessary, be given in evidence against him without further proof thereof, if the same purports to be signed by the justice or justices by or before whom it purports to have been taken, unless it is proved that it was not in fact signed by the justice or justices by whom it purports to be signed.”

17. [17]
    Section 111 of the Act provides, so far as is relevant, as follows:

“111 (Depositions of persons absent etc)

When any person has been charged before justices with an indictable offence and has been committed for trial, the deposition of any person taken before the justices, may, if the conditions hereinafter as set out are satisfied, without further proof be read as evidence on the trial of that person…(my underlining).”

18. [18]
    The implication of the words that I have underlines above, are that the defendant must be charged with an indictable offence that has been outlined prior to the compilation of the depositions. This complements the formalities referred to in section 104.

19. [19]
    Section 113 of the Act provides as follows:

“113 (If defendant admits guilt and does not wish witnesses to appear against him he may be committed for sentence)

If the defendant, on being asked as aforesaid whether he wishes to say anything in answer to the charge, says that he is guilty of the charge, the justice or one of the justices shall further say to him the words following or words to the like effect:-

Do you wish the witnesses again to appear to give evidence against you at the Court to which you will be committed?  If you do not, you will now be committed for sentence instead of being committed for trial, and you will not afterwards be able to deny your guilt.

And if the defendant then says that he does not wish the witnesses again to appear to give evidence against him, his statement shall be taken down in writing and read to him, and shall be signed by the justices, and by the defendant if he so desires, and shall be kept with the depositions of the witnesses, and shall be transmitted with them to the proper officer as hereinafter provided.”  (My underlining.)

20. [20]
    In respect of the words that I have underlined above, there are a number of authorities that demonstrate that there is a judicial discretion that may be enlivened to allow a defendant to make a change of plea. See R v Stanton (1928) 28 SR NSW 516 (at 517-518); R v Kirvan (1924) 18 QJPR 155 (where the statutory warning was not complied with and a change of plea was allowed); R v Ernst (1939) QWN 45 (where the statutory warning was not complied with, other reasons also being argued and a change of plea was allowed); and R v Moxham (2000) QSC 152 (in which reference was made to R v Popovek (1964) QdR 561 and R v Meissner (1995) 184 CLR 132 at 157).

21. [21]
    Section 600 of the Criminal Code (Queensland) relevantly provides as follows:

“600 Persons 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.”  (my underlining).

22. [22]
    The words that I have underlined above express the basis upon which an exercise of judicial discretion may be enlivened. It is said to require the accused person to point to exceptional circumstances (see Popovek, supra) or to demonstrate that letting the plea stand would amount to a miscarriage of justice (see Meissner, supra), in order for the discretion to be exercised in his favour.

23. [23]
    In R v Tatnell (1962) QdR 11, the Court held that the plea before the magistrate had been made in circumstances where section 104 of the Act had not been complied with, there having been no examination of witnesses conducted. The court therefore considered that his plea of guilty was not, in the words of section 600 of the Criminal Code, “duly admitted before the Justice that he was guilty of the offence”.  That case’ of course’ preceded the amendment to the Act that introduced the procedures in section 110A of the Act.

Discussion.

24. [24]
    The record of proceedings before the magistrate in this case make it clear that no words were uttered by the accused, other than the words “yes, yes Your Honour …”; that is, the accused did not himself enter any plea and no plea, save for an intimation by C, who interrupted the accused, informing the Court that a plea of guilty would be entered in the District Court, was in fact entered at all.

25. [25]
    In my view the statement by C is not sufficient to amount to a proper plea. It follows that no proper plea of guilty was made at all.

26. [26]
    I am fortified in that view by reference to R v Ellis (1973) AC 571, where apposite statements were made by the Court of Appeal. The statements refer to arraignment upon indictment, but in my view the principle espoused applies equally to committal proceedings because of the requirements of the Act.  Lord Justice Edmund Davies (at 573-575) said the following:

“Arraignment is basic to criminal trials by judge and jury.  As Russell puts it (Criminal Evidence, 16^th ed. p 242):‘It consists of two parts, the reading of the statement and the particulars of the offence to the defendant and the asking him whether he is guilty or not guilty. The common law and statutes make special provision for cases where the accused appears deaf, or dumb, or refuses to plead, or is insane, but in the absence of special features of that kind he must be called upon to plead and he must personally answer to the plea.  Lord Goddard CJ said in Hayes (1950) 34 Cr. App. R. 161, at p. 162:  ‘the shorthand note rather unfortunately does not contain any indication that the appellant himself was asked to plead, but merely a statement that his counsel said that he wished to plead Guilty.  Of course, that is not enough; the prisoner must himself plead.’”

27. [27]
    His Lordship then referred to a case called Tasamulug, in which Lord Widgery CJ said the following:

“… in the circumstances of this case it was not, in our judgment, necessary for the accused himself by his own mouth to enter the amended plea of Not Guilty.  It is an almost universal and very solitary rule that a plea of Guilty should not be accepted except from the mouth of the accused, but quite different considerations can apply where at the instance of the accused and through his advocate of the Court is asked as matter of grace to allow a plea to be changed...”.

28. [28]
    His Lordship then continued as follows:

“But we take the view that those words do not impinge upon the rule that before a criminal trial by judge and jury can be properly launched there must generally be an arraignment of the accused of the offence charged and he must personally answer to it, and that this cannot be done through counsel or any other person on his behalf.  If we may respectfully say so, the Lord Chief Justice was accurate in describing this requirement as ‘almost universal’ for there are a few special cases (such as those referred to earlier in this judgment) where another may plead on the accused’s behalf or where the Court takes it upon itself to enter a plea of ‘Not Guilty’.

The Lord Chief Justice also described the general rule as ‘very solitary’.  With that we’re in strong agreement, for great mischief could ensure for legal representative was generally regarded as entitled to plead on an accused’s behalf.  It would open the door to dispute as to whether for, for example, counsel had correctly understood and acted upon the instructions which the accused had given him, and, if a dispute of that kind arose, the consequential embarrassment and difficulty could be difficult in the extreme.”

29. [29]
    More recently in this Court in R v Wotton (2007) QDC 181 the accused was permitted to withdraw a plea of guilty entered upon arraignment, in circumstances where the Court had been closed.  His Honour Judge Nase said:

“This involved a procedural defect that is fundamental in the sense that the requirement the plea be taken in an open Court is a mandatory requirement (section 597C), the breach of which is a serious departure from the essential requirements of the law.  In these circumstances, it is appropriate for me to allow Wotton withdraw the plea entered on 5 March 2007.”

Conclusion.

30. [30]
    In my view there was certainly a doubt as to how the accused intended to plead, particularly in the circumstances where the charges against him relied upon confessions that were to be the subject of significant dispute - partly on psychiatric grounds and partly on the alleged level of the accused’s intoxication at the time that he was interviewed - and potentially, but speculatively at this time, upon results of forensic testing which were currently not available.

31. [31]
    The applicant had begun to speak in response to the formal charge. It is impossible to say, with confidence, what his completed response might have been, whether guilty or not guilty. Hence the plea entered by C cannot stand.

32. [32]
    The plea of guilty stated by C was expressed prospectively. The difficulty with this is that an event may occur between the committal proceeding and an arraignment in the superior court, for example, that challenges the efficacy of the evidence against the accused or gives rise to an indictment that is presented containing different charges. Such events might lead to a plea of not guilty being preferred upon trial. If it was thought that a statement expressing an intention to plead guilty when called upon arraignment in a superior court sufficed to amount to a plea of guilty for the purposes of the Act, it seems to me that this is both inherently dangerous and may lead to injustice.  In my view it is also contrary to the statutory requirements in the Act.

The Practice in the Magistrates Court.

33. [33]
    The evidence adduced before me so far as the practice in the Magistrates Court in Queensland is concerned seems to indicate that some magistrates used the Pro-forma Form (reference to which has been made above) and others use a different method, whether it be a formal document or a form of words, that the individual magistrate has devised. It also appears to be the case that some magistrates require a defendant to personally answer to the formal charge and enter the plea himself or herself, whilst other magistrates appear to accept a statement made by legal representatives on behalf of a defendant in entering a plea on their client’s behalf.

34. [34]
    In my view, it may be advisable that the practice of magistrates should be standardised and it should be a requirement that, save for the type of special circumstance to which reference is made in Ellis, a defendant be required to enter a plea, whether it be guilty or not guilty, personally in response to the formal charges read by a magistrate in accordance with the Act. 

35. [35]
    On 22 August 2008 I reserved this judgment and admitted the accused to bail. It was implicit in my views expressed then and in light of the concession by the Crown, that the plea of guilty in the Magistrates Court was made irregularly and that in an exercise of my discretion the accused was entitled to withdraw the plea. Upon a resumption of this matter at trial and when the accused is arraigned he is entitled to exercise his right to plead not guilty to one or more of the offences as he sees fit.

ORDER

1. The accused be allowed to withdraw the plea of guilty entered in committal proceedings in the Magistrates Court  on 08 March 2006.