PPG v Commissioner of Police[2011] QDC 277

DISTRICT COURT OF QUEENSLAND

1. [1]
   This appeal against conviction raises again the procedural requirements for entering a plea in summary proceedings in the Magistrates Court. In the particular circumstances of the case I am not satisfied the appellant effectively pleaded guilty. Because of this, the proceeding was fundamentally flawed.  The conviction should be set aside.

The charge

2. [2]
   The appellant was charged with breaching an order made under the Domestic and Family Violence Protection Act 1989.  The order, made on 4 March 2009, included an order that the appellant was “prohibited from having or attempting to have ANY contact (including by any means of communication) either directly of indirectly with the aggrieved”.  The exceptions to that order included contact “for the purpose of having contact with a child or children as ……… permitted by an order made under the Family Law Act.”

3. [3]
   The aggrieved was the appellant’s wife, from whom he was separated.

4. [4]
   Orders made in the Family Court on 10 April 2000 included an order that the appellant’s two children would have contact with him as agreed or as further ordered by the court “including but not limited to the following:  

1. (a)
   Each Sunday between 1.00pm and 4.00pm;
2. (b)
   For [the older child] on 2 May, 14 May, 4 October, 25 November, 15 November, 1 January, 1 February and 29 March each year from 1.00pm to 3.00pm.

5. [5]
   The older child, whom I will refer to as T, was born on 30 August 1992.

6. [6]
   The appellant was charged with breaching the protection order on 29 August 2010. At 4.45pm he rang the home phone number of the aggrieved spouse and had a conversation with his daughter [T]. It was about her birthday – she was to turn 18 the next day. The prosecutor told the magistrate no threats were made during the conversation. The daughter felt uncomfortable because the appellant was not supposed to contact the family. She hung up. The mother “walked in at the end of the conversation”^[1] and heard that the appellant had telephoned.  She made a complaint to police.

7. [7]
   The police interviewed the appellant about the telephone call on 23 September 2010. He admitted making the call. He explained he wanted to wish his daughter happy birthday for the next day and had not been able to call her earlier.^[2] The prosecutor told the magistrate that call records showed the telephone call lasted 21 seconds.

Proceedings in the Magistrates Court

8. [8]
   On 12 October 2010 a duty lawyer appeared for the appellant. The magistrate’s notes on the bench charge sheet include,

Duty Lawyer submits there is no breach of DV order ………….. will write a submission there is no case against Defendant.

9. [9]
   The appellant failed to appear on 9 November 2010. The notes on the bench charge sheet include,

Med. Cert on file.

Submission sent: Not accepted.

10. [10]
    On 30 November 2010 the case was set for trial on 14 February 2011. On that morning, the prosecutor^[3] told the court the matter “was set down for a summary hearing today. I understand my friend will now take a certain course.”

11. [11]
    The learned magistrate read the charge to the appellant and asked for his plea. He replied, “On the basis of the Prosecutor, I’ve been given an ultimatum, I need to plead guilty. For my own – because I’ll be up – the odds, although justice ---.”

12. [12]
    The magistrate explained she could not accept a plea that was not voluntarily made.

13. [13]
    Among other things, the appellant said,

I was falsely arrested because all I did was made a phone call to my daughter to wish her happy birthday, but it was outside the times so, therefore I was picked up on a technical breach. But it’s a breach of the Family Court order, not the domestic violence order according to Legal Aid.^[4]

14. [14]
    The appellant also made statements to the effect that he would plead guilty to make things less complicated; that he had been ridiculed by police; that the prosecutor had told him things would be difficult for him unless he pleaded guilty and that she would not seek a conviction or a fine against him. He said he wanted “the matter over and dealt with; it is causing me too much stress”.^[5]

15. [15]
    The learned magistrate would not accept a plea of guilty under the circumstances and suggested an adjournment for the appellant to consider his position. The prosecutor told the court five witnesses were ready to give evidence, three police officers and two “independent witnesses”. The prosecutor said nothing about any discussion she had had with the appellant.

16. [16]
    Before the court adjourned, a solicitor with considerable experience, who happened to be in court, spoke up. He said, “Your Honour, I’ve got nothing to do; I’ll act as friend of the Court and speak to the defendant and see if we can get some resolution that way.”^[6]

17. [17]
    When the court resumed the solicitor spoke first. He said, “I’ve had a word with the defendant. We’ve gone through the domestic violence order. I’ve pointed out to him what the breach is; he accepts that advice and we’re prepared to take the charge as read and enter a plea of guilty.”

18. [18]
    The magistrate thanked the solicitor. The prosecutor recited the facts and tendered the appellant’s criminal history. It shows the appellant has been before courts several times, including on 14 February 2005, when he was fined for obstructing police and breaching a domestic and family violence prevention order. The prosecutor submitted the appellant had not been before a court since 2005, that his breaches of orders date back to 1996 and that she had “no concerns in terms of any recurrence”.^[7] The solicitor made brief submissions about the facts and the appellant’s health and submitted that “it would be appropriate for my client to either be convicted and not further punished or to be placed on a bond.”^[8]

19. [19]
    The endorsement on the bench charge sheet includes the appearance of the solicitor and the words, “friend of court”.

20. [20]
    The magistrate imposed a fine of $75 without recording a conviction. Her Honour also said, “two months to pay and one day in default”.^[9]

The appeal

21. [21]
    The notice of appeal was filed on 17 March 2011. The grounds of appeal set out in it are:

1. A.
   I was forced into a plea of guilty of a technical breach when publicly humiliated and arrested by police (Boondal).

1. B.
   Police prosecutor received an appeal letter from Legal Aid Solicitor stating that I was placed under false arrest – submission was sent to chief prosecutor’s office!

1. C.
   Police harassment every time I comply with Federal order!

22. [22]
    Notice of application for extension of time was filed on 23 March 2011. Separate grounds are set out but, the delay being a short one and no prejudice being claimed by the respondent (the respondent’s outline includes no submissions against the extension of time) this is a case where the extension should be granted if the appeal has prospects of success.

23. [23]
    The appellant filed five affidavits in this court. The respondent did not oppose my receiving them. Three attached brief letters from the appellant’s general practitioner, psychologist and psychiatrist respectively. The effect of these documents is that the appellant has a long term diagnosis of schizophrenia, he receives counselling for anxiety and medication to control stress and anxiety. The appellant, who conducted the appeal in person, told me he takes medication. He was obviously able to function at a reasonable level. Another affidavit attached a letter from the appellant’s wife’s solicitor and included the appellant’s complaints about the harassment he feels from those parties. The fifth affidavit discloses the appellant’s financial circumstances.

24. [24]
    The two last-mentioned affidavits were irrelevant to the appeal. The medical material I considered potentially relevant to the question whether the appellant exercised a free choice at the Magistrates Court.

25. [25]
    In the appellant’s written outline he elaborated on his concerns about being falsely arrested and treated unreasonably by the police. These submissions indicate the appellant’s pre-occupation but do not advance the appeal.

26. [26]
    The appellant gave evidence at the hearing of the appeal. He said he was afraid when he spoke to the prosecutor before court opened; that she yelled at him and berated him, telling him he needed to plead guilty; he was told he would be “forcing pressure onto my own daughter”^[10] in making her give evidence; he was intimidated; the prosecutor introduced him to the solicitor and said he should be “gracious to have free legal help from a person of his calibre”.^[11]

27. [27]
    Of his discussions with the solicitor the appellant gave evidence that he was coaxed into pleading guilty; there were several discussions with the solicitor. As to the advice the solicitor gave, the appellant said “he said that it would perhaps even go as far as affecting my daughter’s studies.”^[12]

28. [28]
    Counsel for the respondent did not cross-examine the appellant. The respondent did not produce any material on the appeal.

An appeal against conviction after a plea of guilty

29. [29]
    The respondent submitted the appeal was incompetent because it purported to be an appeal against conviction after a plea of guilty.

30. [30]
    Justices Act s. 222 relevantly provides:

1. (1)
   If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.

1. (2)
   However, the following exceptions apply—

……………

1. (c)
   if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.

31. [31]
    In the written outline, the respondent submitted the appellant was of full age, sound mind and understanding and legally represented when he entered the plea of guilty before the learned Magistrate and referred to Long v Spivy [2004] QCA 118. At the hearing of the appeal, counsel for the respondent drew my attention to the fact that the appellant did not personally plead guilty and submitted the only question was whether there was any plea of guilty at all given the terms of s. 145 and the decisions in Ellis (1973) 57 Cr App R 571 and R v Williams [1977] 1 All ER 874.

Can a lawyer enter a plea of guilty for a defendant?

32. [32]
    In Long v Spivy, the Court of Appeal set aside orders made in the District Court allowing an appeal against conviction after a plea of guilty in the Magistrates Court. The provisions of s. 222 were relevantly similar.^[13] The magistrate had read the two charges to the defendant and asked him, “In relation to these two charges how do you wish to plead?” The defendant said “Guilty”.  After the facts were read – including that the defendant spat at a police officer – the defendant said he did not recall spitting on the police. 

33. [33]
    Davies JA, after examining the record and affidavit of the defendant inferred that when he pleaded guilty the defendant intended to do so.^[14] Referring to Meissner v The Queen (1995) 184 CLR 132 at 141, his Honour said,

A plea of guilty will not ordinarily be set aside unless "the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence". But the question here is arguably a narrower one than was considered in those statements. It is not whether a miscarriage occurred in accepting the plea; it is whether there was a plea of guilty at all.

34. [34]
    Davies JA considered that a plea of guilty “will be shown, in reality, not to have been such a plea only if it was not entered by the accused in the exercise of a free choice”.^[15]

35. [35]
    I have set out above what occurred in the Magistrates Court. After an adjournment, a solicitor, who had offered to act as friend of the court and whose appearance was so recorded, said, “we’re prepared to take the charge as read and enter a plea of guilty”.

36. [36]
    It was unnecessary to “take the charge as read” because it had been read to the appellant. The question is whether what occurred amounted to a plea of guilty entered by the accused in the exercise of a free choice.

37. [37]
    Section 145 of the Justices Act requires that the charge be read to the defendant and that the defendant be asked how he or she pleads. A natural reading might lead one to expect the defendant must, personally, answer.^[16] That is invariably the practice on indictment.^[17]

38. [38]
    There is, however, a body of authority for the regular practice of counsel speaking for a defendant in the Magistrates Court, such as the friend of the court purported to do on this occasion.

39. [39]
    In Daly v Barlow [1969] Qd R 237, Hoare J decided that rules regulating the procedure of an investigation into the conduct of a police officer, being procedural provisions – the “means to an end and never an end in themselves” - could be waived expressly or impliedly. His Honour continued, “…sometimes an irregularity will be of such a fundamental character that the proceeding will be regarded as a nullity, but in other cases an irregularity will be less serious.”^[18]

40. [40]
    In that case, the rule requiring that the substance of the charge of misconduct be stated to the officer and that he be asked whether he admitted it was not followed. Hoare J was satisfied the officer suffered no injustice, the hearing proceeding with his participation as if he had pleaded not guilty, which was his intention.

41. [41]
    Hoare J disagreed with the reasoning of Andrews D.C.J.^[19] in Rowen v Strophair (1967) 61 QJPR 33.  In that case, no plea was taken at a summary trial of a charge of dangerous driving brought under s. 328A of the Criminal Code.  Andrews D.C.J. rejected an argument that the failure to take a plea was an irregularity waived by the defendant in that at the conclusion of the prosecution case he gave evidence and, through his counsel, addressed the court.  The requirement to state the charge and take a plea was one of “certain duties imposed upon the Courts for the protection of accused persons which even in summary proceedings as distinct from pleas of the Crown may not be waived.”^[20]

42. [42]
    Hoare J, in Daly v Barlow, said, at [1969] Qd R 242-243,

The approach which I find useful in the present case is to distinguish between substantive rights and procedural provisions. For instance, notwithstanding the express provisions of s. 145 of The Justices Acts, I can see no objection to a defendant being dealt with summarily, saying, “I know precisely what the charge is. There is no necessity to read the complaint over to me. I admit the charge.” Likewise, if a defendant is represented by counsel or solicitor, I see no reason why the latter should not follow the time-honoured formula and say, “I take the complaint as read and plead guilty.” There is no reason why counsel or the solicitor should not speak for his client: see R. v. Salisbury & Amesbury Justices (supra)^[21], per Goddard C.J., at p. 147 and per Donovan J. at p. 148). In neither of these suggested instances had the letter of s. 145 been followed but the provision is a procedural one and I can see no reason whatever why the requirements of a mere procedural provision should not be waived.

43. [43]
    In R v Paauwe [1971] 2 NSWLR 235, the defendant apparently pleaded guilty at the committal hearing. In the Court of Quarter sessions, his counsel said, “If your Honour pleases, I appear for the accused and he adheres to his pleas.” In a single judgment, the New South Wales Court of Criminal Appeal referred to “the invariable practice, when the accused is before the magistrate, that the proceedings should commence with the accused being charged. Once charged, his counsel or attorney in his presence, may answer for him.”^[22] Authority for the practice was said to come from s 70(3) of the Justices Act (NSW) which empowered the defendant to “himself . . . or by his counsel or  attorney make full answer and defence ... ” and R v Salisbury and Amesbury Justices.

44. [44]
    For what it adds to the discussion, the Criminal Code ss. 618 and 619 presume Counsel will answer on behalf of the accused. Section 618 provides that at the close of the prosecution case the court asks the accused person whether he or she intends to adduce evidence in defence. Section 619 deals with addresses of counsel. Subsection 619(2) provides, “If the accused person . . . .is defended by counsel, and if such counsel . . . says that the accused person does not intend to adduce evidence, the counsel for the Crown is entitled to …….”

45. [45]
    On the other hand is the decision of Rice J in Sesar v Haymon (1987) 50 NTR 1.  The appellant’s counsel told the magistrate he was instructed to enter a plea of guilty to the simple offence charged. The charge was not read to the defendant. Section 67 of the Justices Act (NT) provided,

67(1) When the defendant is present at the hearing the substance of the complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him.

46. [46]
    Rice J thought that, although counsel may enter a plea on behalf of a defendant, if the defendant is present at the hearing “it is mandatory . … that the substance of the complaint shall be stated to the defendant and he shall be asked how he pleads.”^[23] His Honour so considered because of the language of the statute and because such a practice,

ensures that a defendant unequivocally through his own mouth enters a plea which can be accepted by the court without reservation to the same extent that a legal practitioner can, under [another provision], in the absence of the defendant, enter a plea without reservation since, in those circumstances, the defendant has clothed his legal representative with all the trappings of ostensible authority.

47. [47]
    Rice J referred in detail to the reasons of Andrews DCJ in Rowen v Strophair, not, apparently, aware of the position taken with respect to that case in Daly v Barlow. Importantly, in my view, Sesar v Haymon was a case like the present – where the appellant has been convicted upon what purported to be a plea of guilty.

48. [48]
    R v Duffield (1992) 28 NSWLR 638 concerned, among other things, an argument about the effect of a “negotiated plea” of guilty which brought lengthy committal proceedings to an end.  The defendant did not personally plead guilty. Kirby P remarked,

A public acknowledgement of a plea of guilty from the lips of the accused person may help ensure against later assertions of a lack of understanding, confusion or actual misrepresentation of instructions given to legal representatives.^[24]

49. [49]
    Similar advice is given in the Duty Lawyer Handbook, with respect to Justices Act s. 145:

As a matter of caution it is suggested that the duty lawyer allow defendants to enter their own plea. As all proceedings should be electronically recorded, difficulties later as to the voluntariness of the defendant’s plea may be avoided.^[25]

50. [50]
    The English cases, Ellis (1973) 57 Cr App R 571 and R v Williams [1977] 1 All ER 874, concerned proceedings on indictment. I had occasion to consider these cases in Commissioner of Police v Warcon [2011] QDC 28, and said, at [17],

In Ellis, the court proclaimed the fundamental importance of the defendant's claim to direct participation in making the plea of guilty. In Williams, the court did not conclude the same fundamental importance attached to the personal making of the defendant’s plea of not guilty where the trial was obviously conducted in his presence on the premise that he had so pleaded.

51. [51]
    The position seems to be that a lawyer may speak for a person, even when the person is present in court, telling the court the charge may be taken as read and even that the defendant pleads guilty. Part 6 of the Justices Act does not expressly exclude such a procedure. It provides that a defendant may be convicted in absentia (ss. 142, 142A); may plead guilty in writing in a letter sent by a lawyer (s. 146A) and may appear in person or by a lawyer (eg, s. 144). Where the defendant is present, s. 145 requires that “the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads.” Subsection 145(2) then provides for what must happen, “If the defendant pleads guilty”.

52. [52]
    Because of the effect of a guilty plea on the rights of appeal under the Justices Act, the caution counselled in R v Duffield is especially applicable in summary proceedings.

Did the appellant plead guilty?

53. [53]
    I proceed on the basis that a lawyer acting for a person may tell the court the person pleads guilty, effectively entering the plea on the defendant’s behalf. I am not satisfied that occurred in the present case because it is far from clear that the solicitor was engaged in a solicitor/client relationship with the appellant. He offered assistance as friend of the court and his appearance was so recorded. In the circumstances, I am not prepared to infer, despite the manner in which the solicitor made submissions, that the solicitor was even temporarily retained to act for the appellant.

54. [54]
    In Levy v Victoria (1997) 189 CLR 579 at 604, Brennan CJ said,

The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.

…

“It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

55. [55]
    I conclude the solicitor appeared as amicus curiae, not as a representative of the appellant. In the circumstances, where the appellant did not say he was guilty and the person who purported to do so on his behalf was not his lawyer, I am not satisfied the appellant pleaded guilty. The exclusion in Justices Act s. 222(2)(c) does not apply. The appeal is not, therefore, incompetent. The trial miscarried fundamentally, no plea having been entered.  No evidence was led and so there is no proper record to review.

56. [56]
    The order appealed from must be set aside and the matter sent back to the Magistrates Court for the further conduct of the proceedings, should the prosecuting authorities deem that appropriate.