Pitt v Queensland Police Service
[2012] QDC 378
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- Pitt v Queensland Police Service[2012] QDC 378
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Pitt v Queensland Police Service[2012] QDC 378
Pitt v Queensland Police Service[2012] QDC 378
[2012] QDC 378
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE HARRISON
No 87 of 2012
RYAN HENRY PITT | Appellant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
CAIRNS
DATE 14/09/2012
JUDGMENT
HIS HONOUR: This is an appeal by Ryan Henry Pitt in relation to a conviction in the Mossman Magistrates Court on the 18th of April 2012 on an offence of indecent assault. When the matter was dealt with by the Magistrate that day he was represented by a solicitor, and I do have a copy of the transcript of the sentencing procedure.
The basis of the appeal is that there was not compliance with the provisions of section 552I of the Criminal Code when the matter was dealt with. This section deals with indictable matters which are dealt with summarily. Essentially, under the legislation this is one of those indictable offences which must be dealt with summarily unless the person charged makes an election to bring the matter up to the District Court.
The basis of the argument is that on the transcript, which was conceded by the Crown in response to this appeal, at no stage did the Magistrate ask pursuant to section 552I(3) whether the accused was guilty or not guilty of the offence. Further, it was argued that there was no compliance with subsection (4) in terms of convicting if the accused said guilty, and even further, the argument was that the plea could not and should not have been entered by the solicitor.
The transcript shows that when proceedings commenced, the Magistrate did not call upon the accused to plead, but the record reads with the solicitor as saying "Yes, your Honour. We plead guilty to the charge." The Magistrate then acted on that plea, "I have read the Bench charge sheet" and he noticed that the accused was represented, that he appeared in person, and that there was a plea of guilty. He entered the words "PG" on the file. He then proceeded to deal with him and placed him on probation, and also ordered some compensation.
On the appeal before me, it has been conceded that he was not called upon for the purposes of section 552I subsection (3). I have been given some decisions of his Honour Judge Durwood in Townsville in matters of R v. Logan [2009] QDC 237, and Brown v. QPS [2011] QDC 301. Essentially, these are advanced to support the proposition that the plea of guilty should have been entered by the appellant himself and not by the solicitor, and also that the Magistrate must convict for the purposes of subsection (4).
Certainly, it seems to me that there has not been any compliance with subsection (3) with the appellant not having been called upon, and that of itself is something which would be sufficient to affect the validity of the plea of guilty and for me to be satisfied that it was not validly entered. I do not necessarily go as far as what has been advanced in relation to what happened from there however.
The issue of whether or not a solicitor can enter the plea is not necessarily clear-cut as I see it, and there is no higher Court authority to that effect. Had it been just that, I may not have upheld the appeal because it seems to me that as a matter of practice this is what has often been done, and it seems to me that if we were to go behind that, a more appropriate way to do that would have been in terms of some attempt to vacate the plea.
I also have concerns about the argument insofar as it relates to the issue of must convict under subsection (4). Certainly, it does not seem to me that a Magistrate would have to go as far as we do in terms of the administration of the allocutos, and he has noted the file to the effect that there was a plea of guilty.
Perhaps he should have noted the file to the effect that he was convicting, and that he could have said something to that effect. I have not really thought that through, but that is probably academic now in view of what I said earlier.
I note the appeal is made under section 222 of the Justices Act, and as I indicated to Mr Trevino during the course of argument, I believe that that is the appropriate way to deal with a matter such as this if the plea was not validly entered in the first place.
In the circumstances, on the strength of the failure to call upon the accused alone, it seems to me to be sufficient to conclude that the plea was not validly entered. In those circumstances, I set aside the conviction and I order that the matter be remitted to the Magistrates Court at Mossman to be dealt with according to law.
MR TREVINO: Your Honour, if I could just be heard on that last order?
HIS HONOUR: Yes.
MR TREVINO: Would your Honour consider, given that his legal representatives are here in Cairns, remitting the matter to the Cairns Magistrates Court?
HIS HONOUR: Well, it might be more convenient for everybody.
MR TREVINO: Yes.
HIS HONOUR: You've got no objection with that?
MS O'NEILL: I'm in your Honour's hands.
HIS HONOUR: Well, I suppose the only issue is this; do we know what's happening with it? Should it - if it's a Mossman matter, should it not be heard in Mossman if it's a trial? If it's a plea, I don't think it matters where it's heard.
MR TREVINO: Well, the difficulty is that the Magistrate in Mossman would have to excuse himself anyway having already made a determination of the matter and proceeded on a plea of guilty.
HIS HONOUR: All right. Well, if there's no objection.
HIS HONOUR: I amend that recent order. In the circumstances, there was no objection if I had the matter remitted to the Magistrates Court at Cairns out of convenience because that way it might more conveniently for all concerned being dealt with by someone else. Yes, thank you.
Perhaps I'll just add one more thing. I did during the course of argument this morning express some concerns about what the practices were. I understand from what I was told by Mr Trevino presumably via Ms Price to the effect that some of the Magistrates since the decisions of his Honour Judge Durwood have in fact been calling upon the people personally for their plea, and that is something that I also took into account although, as I said, it never really became necessary for me to determine that particular issue. Yes, thank you.