Denning & Garden v The Queen[2013] QDC 185

DISTRICT COURT OF QUEENSLAND

1. [1]
   Each applicant has been charged on indictment with one count of burglary, by breaking, in the night, with violence, while armed, in company.

2. [2]
   At the committal proceedings held on 17 December 2012 they each entered a plea of guilty to the charge. When arraigned in this court on 18 July 2013 they each entered a plea of not guilty to the same charge. The applicant Denning has applied under sections 590AA and 600 of the Criminal Code of Queensland (‘the Code’) for his plea of guilty at the committal to be set aside. He has also made application seeking a ruling that, as a matter of law, there is no case for him to answer on that charge. The applicant Garden has also applied to have her plea set aside in respect of the circumstance of aggravation of “while armed” (s 419(3)(b)(ii)), either pursuant to the provisions of sections 590AA and 600 or pursuant to the inherent jurisdiction of the court.

Facts of the alleged offence

3. [3]
   The complainant Dianne June Smith, at the relevant time, lived with her brother William Smith at a rural property.

4. [4]
   On Sunday 16 September 2012, Garden texted William Smith at about 8:30pm requesting him to pick her up from the Caboolture railway station. At around 10:30pm he received another text message from her, again requesting to be picked up, to which he responded “ok”. He left to collect her shortly afterwards. When he arrived at the Caboolture railway station Garden was not there. He texted her to ask where she was and she responded that she was coming across the highway and would be there soon. Garden in fact never went to the railway station that evening.

5. [5]
   At approximately 11:00pm, the complainant was in her bedroom watching television when she heard a loud crash downstairs. She then heard some shuffling in her brother’s room which was next to hers. She opened her door and said “who’s there?”  While she was looking down the hallway a male walked out of her brother’s room. He was wearing dark clothing with long sleeves and what appeared to be a balaclava. He was carrying a firearm. He shouldered his firearm, pointed it at the complainant and yelled “get back, get back”.

6. [6]
   Another male also came out of that room. He also was wearing dark clothing with long sleeves and what appeared to be a balaclava. He also held a firearm. The first male continued to yell at the complainant to get back. The complainant yelled that she had the police on the line. She then went into her room and slammed the door. She picked up her mobile phone and pretended to speak to police.

7. [7]
   Shortly after that things went quiet and the complainant then called 000.

8. [8]
   Police immediately dispatched vehicles in response to the complainants call. Upon arrival, they found the complainant alone in the house. They observed that a latch to a side screen door had been broken.

9. [9]
   Prior to arriving at the complainants home, police observed a grey Toyota Corolla parked in a nearby location with Garden being it’s only occupant. The car was a hire vehicle. Police spoke with Garden at that time and she produced her driver’s licence. She told police that she was waiting for her ex partner in relation to a handover of their child.

10. [10]
    A short time later other police intercepted that vehicle at a different location. It then contained Garden, Denning and two other men, Tom McCubbin and Tallen Hames. Police searched the vehicle and found;

• two hand drawn maps which depicted the inside of the complainant’s house and the layout of the complainant’s property;
• shotgun ammunition on the rear passenger side floor;
• a sawn off firearm under the drivers seat;
• a disassembled shotgun on the floor;
• a black bag which contained a taser (Panther 200 volt stun gun), a large quantity of empty clip sealed bags, two clip sealed bags containing cannabis, two knives, a switch blade, two sets of handcuffs and numerous yellow zip ties;
• a quantity of methamphetamine, a glass pipe, a mobile phone and McCubbin’s wallet in a container in a rear pocket of the drivers seat;
• three other mobile phones;
• and a cattle prod like item in the glove box

The clothing worn by Denning, McCubbin and Hames at the time of interception, matched the complainant’s description of the clothing worn by the two male offenders i.e. dark clothing with long sleeves. A black beanie, a black “hoodie” and a black t-shirt were also located in the vehicle.

11. [11]
    Police transported the occupants of the vehicle to the watch house at Pine Rivers. Garden was taken into an interview room and after being cautioned was advised as to the nature of the complaint. She responded that she had arranged the whole thing and that they went to the address to steal money and drugs. She thereafter declined to participate in an interview.

12. [12]
    Denning, after being appropriately cautioned, stated that he had exited the vehicle at the relevant time and hid in the grass. He also declined to participate in an interview.

13. [13]
    All four of them were charged with the burglary offence although McCubbin and Hames are not parties to these applications. McCubbin alone was charged with possession of the cannabis and the methamphetamine.

Events after the charge was laid

14. [14]
    It is common ground that a solicitor, Christopher David Anderson, attended upon each applicant on 30 October 2012 when they were in custody in the Gympie watch house. He saw them separately. Factual disputes exist between Anderson and each applicant as to what was discussed. Anderson has attested that he read the police fact sheet known as a QP9 to each of the applicants during those interviews. He said that he specifically raised with each of them that the potential penalty would most likely be a head sentence in excess of three years imprisonment given the involvement of a weapon in the commission of the offence. Anderson attested that Denning instructed that he intended to enter a plea of guilty to the charge and that he wished to apply for bail, and that Garden admitted to him that she was the driver of the car and that she had remained in the car throughout and that she also intended to plead guilty to the charge. She also instructed him that she wished to make an application for bail. Each of the applicants had been in custody for approximately eight days at that time.

15. [15]
    The next contact between Anderson and the applicants was on the day of the committal hearing, 17 December 2012. Denning appeared in person whilst Garden appeared via video link from the Women’s Correctional Centre. No further instructions had been taken from either applicant and Anderson had not supplied either applicant with a copy of the police brief relevant to the matter. No conferences took place on the day of the committal hearing prior to the commencement of that hearing.

16. [16]
    The committal proceeded by way of full hand up with no cross-examination. Early in that proceeding it was noticed by the acting Magistrate that the charge against Denning was erroneous in that the wording of the circumstance of aggravation of being armed mistakenly referred to Garden’s name rather than Denning’s. That error was corrected immediately.

17. [17]
    At the end of the proceeding the acting Magistrate addressed Garden in the following terms:

“Bench:  All the evidence being presented, being by way of statements and exhibits, and your solicitor consenting to you being committed for sentence without formal consideration of the material, do you confirm that you wish to plead guilty to this charge and you wish to be committed for sentence?

Defendant Garden: Yes, Your Honour.

Bench: I will formally charge you. You stand charged before me, Dennis Arnold Beutel, an acting Magistrate and one of Her Majesty’s Justices of the Peace, for that on the 16^th of September at Kurwongbah in the State of Queensland, you entered the dwelling of one Dianne June Smith with intent to commit an indictable offence in the dwelling, and entry was gained by means of a break, and that offence was committed at the night, and Halena Garden – that being yourself – were armed with a dangerous weapon, and that you were in company with Tallen Hames and Tom McCubbin and Sean Denning.

I will address you in terms of s 104 of the Justices Act. You will have an opportunity to give evidence on oath before me and to call witnesses, but first I’m going to ask you 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 admission or confession of guilt. Anything you say will be taken down and may be given in evidence at your trial. Do you wish to answer – make any answer to the charge or to enter any plea?

Mr Anderson: She enters a plea of guilty, Your Honour.

Bench: Through your solicitor, you’ve replied ‘I enter a plea of guilty.’ And, defendant, do you confirm the plea of guilty?

Defendant Garden: Yes, Your Honour.”^[1]

18. [18]
    The acting Magistrate addressed Denning in the following terms:

“Bench: Now, Mr Denning, Please stand. All the evidence against you, being by way of statements under s 110A or by exhibits, and your solicitor consenting to you being put upon your trial without me considering their material, do you confirm that you wish to be committed to sentence?

Defendant Denning: Yes, Your Honour.

Bench: Okay. Sean Owen Denning, you stand charged before me, Dennis Arnold, an acting Magistrate and one of Her Majesty’s Justices of the Peace, for that on the 16^th of September 2012, at Kurwongbah in the State of Queensland, you entered the dwelling of one Dianne June Smith with intent to commit an indictable offence in the dwelling, and it was entry by means of a break, and the offence was committed in the night, and that you were armed with a dangerous weapon, and you were in the company of Tallon Hames and Tom McCubbin and Halena Garden.

I address you in terms of s 104 of the Justices Act that you’ll have an opportunity to give evidence on oath before me and to call witnesses, but first I’m going to ask you 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 confession or admission of guilt. Anything you say will be taken down and may be given in evidence at your trial. Do you wish to say anything in answer to the charge or to enter any plea?

Mr Anderson: Your Honour, my client enters a plea of guilty.

Bench: Do you confirm that plea of guilty, Mr Denning?

Defendant Denning: Yes, Your Honour.”^[2]

Re: Denning

19. [19]
    Anderson subsequently provided Denning with a copy of a document entitled “Schedule of Facts” on 8 February 2013. On 12 February 2013 a conference was held between Anderson, Denning and counsel, Mr Courtney. At that conference Denning instructed that he accepted the Schedule of Facts. I note that the Crown Prosecutor had not, at that time, given Denning’s legal representatives any indication as to the penalty that the prosecution would be seeking.

20. [20]
    The following day Anderson recalls that Denning provided instructions that he no longer accepted the Schedule of Facts. Anderson’s file note specifically notes that Denning instructed that he had no knowledge of the weapon and that he had not had any discussions with his legal representatives about the use of a weapon in the commission of the offence.

21. [21]
    Anderson and Courtney after discussing the matter subsequently advised Denning that they were no longer able to continue to act for him and advised him to obtain independent legal advice. They subsequently withdrew from the matter.

22. [22]
    In his affidavit Denning has asserted that when he spoke to Anderson at the watch house on 30 October 2012 he told him that he was not guilty of the offence. He says that Anderson advised him that if he entered a plea of guilty it was likely that he would be released from jail at the time of sentence, whenever that might be, on the basis of “time served”, whereas if he pleaded not guilty and took the matter to trial he could be in custody on remand for up to 18 months. Denning said that he subsequently pleaded guilty at the committal hearing based upon Anderson’s advice as to when he was likely to be released.

23. [23]
    Denning said that he was provided with a copy of the Schedule of Facts approximately a week before his scheduled sentence date, after which he had a conference with his solicitor and barrister. He said that he was then advised by them that the prosecution would be seeking a sentence which would require him to serve a minimum period of 18 months in actual custody. He said that he advised Anderson that he was pleading guilty to something he didn’t do and that if he couldn’t be released when the matter is listed for sentence then he would wish to change his plea.

24. [24]
    Denning agrees that he conferred again with his solicitor and barrister on the day listed for sentence at which time he was advised that the prosecution was still seeking the same sentence. He says that he then advised them that he wished to change his plea to one of not guilty.

Re: Garden

25. [25]
    Garden has given evidence that she does not recall giving any instructions to Anderson on 30 October 2012 as to whether she intended to plead guilty or not guilty. She said that she had no recollection of Anderson reading the facts surrounding the alleged offence from a police document to her and that she at no time has been in possession of such a document. She said that she was aware from the night of her arrest on 16 September that it was alleged that the offence involved the use of a weapon but did not understand that that part of the allegation was relevant to her. She said that when she appeared via video link at the committal proceeding she had difficulty in hearing what was being said and that when she entered her plea of guilty she did not appreciate that the charge included an allegation of her being armed.

Legal principles

26. [26]
    There is no doubt that the court has the discretion to allow a plea of guilty to be changed. As Mullins J said in R v Moxham [2000] QSC 152 at [5]:

“The existence of such a power was recognised by the Court of Criminal Appeal in R v Popovic [1964] Queensland Reports 561. In that case, Lucas J (with whom the other members of the court agreed) stated at 568:

‘An accused person who has been committed for sentence and who had pleaded guilty before the court to which he had been committed, must, I should think, be able to point to exceptional circumstances in order successfully to invoke the exercise of the discretion in his favour… .’”

27. [27]
    Notwithstanding that Popovic differed from the facts in this matter in that he had entered a plea of guilty in the superior court, the exceptional circumstance test seemed to be the test which was applied for years following that decision.

28. [28]
    In more recent years that test has varied somewhat, and it now is one which requires consideration be given as to whether letting the plea of guilty stand would produce a miscarriage of justice.^[3]

29. [29]
    Notwithstanding that change in approach, I note the comments of Mullins J in Moxham at paragraph [6]:

“Expressing the test in this way is not in substance different from requiring an accused to point to exceptional circumstances, in order to invoke the favourable exercise of the discretion.”

30. [30]
    Counsel for Denning has taken the matter a step further by submitting that more recent Court of Appeal cases suggest that in certain circumstances, rather than being a matter of discretion, a court must not accept a plea of guilty. I was referred to R v GV [2006] QCA 394 where the court said:

“[36]  A plea of guilty may be withdrawn at any time before the sentence is imposed. As the High Court held in Maxwell v The Queen^[4]after referring to authority in the House of Lords:

‘… A plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused. As Lord Reed observed in S v Recorder of Manchester:

‘It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise.’

It is the disposal of the case which results in the judgment of the court embodying a determination of guilt.’

1. [37]
   Those cases and others establish the proposition, repeated in the annotations to s 598 of the Criminal Code, at [598.15], that a plea of guilty which is not in plain, unambiguous and unmistakeable terms must be treated as a plea of not guilty, and further that where, on a plea of guilty, a defendant so qualifies the plea by giving an explanation in relation to the matter with which he has been charged, he should be taken to be pleading not guilty.

…

1. [40]
   When it became apparent to the judge that the facts on which he was being asked to sentence the applicant showed that he had, at least arguably, a complete defence to the charge, the judge should have directed that a plea of not guilty be entered in place of the plea of guilty. In those circumstances the applicant was unfairly denied a fair opportunity of acquittal and he should be given leave to withdraw his plea of guilty and a plea of not guilty entered in its place.”

31. [31]
    Counsel also referred to McNamara v Queensland Police Service [2013] QCA 100, where the Court of Appeal held that the acceptance by a magistrate of a plea of guilty, in circumstances where the lay defendant had offered an explanation consistent with the existence of a possible defence, had given rise to a miscarriage of justice.

32. [32]
    It has been submitted that these cases suggest that where a defendant who has pleaded guilty seeks to raise an arguable defence, the interests of justice require that he should be given the opportunity to have the matter of his guilt or innocence determined at trial.

33. [33]
    That may well be a correct statement of principle depending upon individual circumstances. In my opinion however, the circumstances do not warrant such an approach in this case. In McNamara, the defendant was self-represented and entered a plea of guilty after having already submitted an eight page document explaining why he committed the offence which raised the possibility that he had a defence under s 25 of the Criminal Code. Understandably, the Court of Appeal concluded that the plea of guilty should not have been accepted in such circumstances and that a plea of not guilty should have been entered.

34. [34]
    In GV the Court of Appeal referred to a number of cases which had the common feature of a defendant making submissions on sentence that were inconsistent with the plea of guilty that had just been entered. That is far from the position in this matter. In fact, in GV both the prosecution and the defence made factual submissions to the court which were mostly consistent with a potential complete defence to the charge and it was in that context that the court made the comments that I have referred to above.

35. [35]
    In the present case however, Denning has unambiguously stated that he only decided to change his plea to not guilty after being advised that the sentence that the prosecutor would seek was greater than he had anticipated. That was a decision that he made approximately three and a half months after the entry of his plea of guilty in the Magistrates Court. It was then not until 6 July 2013 that he swore an affidavit in which he made the bland statement:

“I did not go into the house in question, and had no involvement in any offence that was committed. I was not a party to any offence.”

He has provided no other evidence on the topic and has in no way attempted to explain the extraordinarily suspicious circumstances surrounding his activities on the night of the offending conduct.

36. [36]
    In a case such as this, the approach which the court should take in considering whether to allow a change of a plea of guilty is that which was adopted by Mullins J in Moxham which reflected the following statement from the judgement of Kirby P (as the then was) in Liberti (1991) 55 Australian Criminal Reports 120, 122:

“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 New South Wales law reports 582; (1979) 1 Australian Criminal Reports 59; Sagiv (1986) 22 Australian Criminal Reports 73 at 81.”

37. [37]
    A recent authority of some assistance is R v Wade [2011] QCA 289 where Muir J with whom Wilson and Chesterman JJ agreed set out the relevant law at paragraphs [42] to [53]. At [42] his Honour said:

“For the appellant to succeed on his appeal against conviction he must first persuade the court to go behind his plea of guilty: he bears the onus of proof. The principle’s relevant to the circumstances in which a court may go behind a plea of guilty are discussed in the following passage from the reasons of Brennan, Toohey and McHugh JJ in Meissner v The Queen (1995) 184 CLR 132 at 141, 142:

‘A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the cause of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. …’”

38. [38]
    At paragraph [44] His Honour said:

‘For good reason, courts exercise great caution in determining applications to set aside or withdraw guilty pleas.’

39. [39]
    In R v Carkeet^[5]Fraser JA, with Keane JA (as his Honour then was) and Holmes JA agreeing, also emphasised the difficulty of having a guilty plea set aside. He referred with apparent approval to the observation of Steytler J in Borsa v The Queen^[6]that:

“It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. There must be a strong case and exceptional circumstances… before an appellate court will set aside a conviction of that kind, the appellant must show that there has been a miscarriage of justice”.

40. [40]
    Taking these matters into account it is my view that this is a matter in which Denning would need to demonstrate a miscarriage of justice before the court should exercise its discretion to set aside his plea of guilty.

41. [41]
    I note that counsel for Garden has submitted that such an approach would also be appropriate when considering his clients application notwithstanding that he submits that the power arises both statutorily (s 600) and under the common law, whilst acknowledging that there would be no difference to the outcome, irrespective of the approach taken by the court.

Applicant – Denning

42. [42]
    The applicant Denning contends that his plea of guilty should be vacated on the grounds that his plea was the result of an inducement and was therefore not made voluntarily with a genuine consciousness of guilt.

43. [43]
    In his affidavit he has deposed that he had no involvement in the offence and was not a party to it. He has also deposed that he told his then solicitor, Mr Anderson, that he was not guilty. Whilst he initially maintained that position in his oral testimony, Denning conceded during his evidence-in-chief that he did in fact instruct Anderson that he intended to enter a plea of guilty to the charge. He said that he gave such instructions after being advised by Anderson that he “would be looking at getting out after time served”. Denning also agrees that Anderson and the barrister who had been briefed to represent him conferenced with him in custody on 12 February 2013 and supplied him with a copy of the Schedule of Facts, after which he confirmed his intention to plead guilty.^[7]

44. [44]
    Anderson said that he read the alleged facts from the QP9 to Denning when he visited him in the watch house on 30 October 2012. Comparison reveals a consistency of allegation between the information contained in that document and that contained in the Schedule of Facts. Denning conceded that at the time he instructed that he intended to plead guilty, he knew the particulars of the allegation and that there were weapons involved. He accepted that he made an informed decision to plead guilty and that he made such decision based on his personal circumstances. Those circumstances being that he had a mother in ill health and that he wanted to see his children.^[8]

45. [45]
    Denning also acknowledged that he was familiar with the process of pleading guilty given that he had been charged with and had pleaded guilty to numerous offences in the past.^[9]

46. [46]
    He was also aware that he could tell his solicitor at any stage that he didn’t agree with what was being said in court and that he could seek clarification of things even whilst in court.^[10]He also conceded that he knew that a plea of guilty can constitute a mitigating circumstance of some significance on sentence.^[11]

47. [47]
    Denning asserted in evidence however, that Anderson guaranteed on 30 October 2012 that he would serve no more than six months imprisonment if he entered a plea of guilty. When asked why he thought Anderson was able to offer such a guarantee he replied that it was because “… he was doing deals with the DPP.”  He said that Anderson told him that he was doing deals with the DPP that very same day regarding this issue.

48. [48]
    I do not accept Denning’s evidence in that regard. Anderson could not have been negotiating with anyone from the Director of Public Prosecutions Office at that early stage as the matter was still in the hands of the Police Prosecution Corp. Anderson himself confirmed that the only person he had spoken to prior to that watchhouse visit, to the best of his recollection, may have been the police prosecutor to discuss objection to bail issues. Furthermore, Denning’s assertion that he believed Anderson to be offering a guarantee of no more than six months imprisonment is completely at odds with evidence he gave earlier wherein he acknowledged that he understood that the determination of sentence is solely the function of the court.^[12]

49. [49]
    I note that Anderson made a file note of the conference on 13 February 2013 when Denning provided instructions that he was not now accepting the Schedule of Facts and intended to enter a plea of not guilty. That file note specifically notes that Denning instructed his lawyers that he had no knowledge of the weapon and that he alleged at that time that he had had no discussions about a weapon being used.^[13]I note that such an allegation is not now made and is directly contradicted by Denning’s own evidence.

50. [50]
    Denning concedes that he decided to change his plea after learning that the submission on sentence that the prosecution intended to make was not to his liking.^[14]That is, he decided to change his plea to not guilty upon learning that the Crown was seeking a heavier penalty than he had anticipated. Furthermore, I do not accept that Anderson’s advice in the watch house constituted an inducement to plead guilty. He did no more than give legal advice so as to enable Denning to make an informed decision. Accordingly, Denning was at all times, free to make a decision based on what he considered to be his own best interests.

51. [51]
    Alternatively, even if such advice was an inducement of some type, it would not, in my view, have a tendency to pervert the course of justice:

“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that persons own interests.”^[15]

52. [52]
    For these reasons I am not persuaded that Denning has demonstrated a miscarriage of justice such that the court should exercise it’s discretion to set aside his plea of guilty. I am satisfied that he duly admitted before the magistrate that he was guilty of the offence charged in the indictment. Accordingly, his application is dismissed.

Applicant - Garden

53. [53]
    Garden asserts that her plea of guilty should be set aside only in respect of the circumstance of aggravation “while armed”.

54. [54]
    She denies ever knowing that the prosecution was alleging that she was criminally liable for the use of a weapon during the burglary and has asserted that Anderson did not read the contents of the QP9 document to her when he saw her in the watch house on 30 October 2012. She says that despite being aware at that time that weapons were involved in the offence she didn’t realise that that part of the allegation was directed at her.^[16]

55. [55]
    Anderson’s evidence is that he read the QP9 document to Garden during that visit. He said that whilst it’s possible that he may have summarised or paraphrased the contents of that document, his recollection is that he read it to his client. When it was put to him that he could have omitted to mention the allegation of a firearm being used, Anderson did not agree. He said that whilst he didn’t have a specific recollection of what he said, he did remember that the use of the weapon was mentioned in the charge and that fact increased the seriousness of the charge, and for that reason he thought it unlikely that he would have omitted to mention it.

56. [56]
    That is not however, the only evidence of relevance. As indicated above, the learned magistrate took particular care in reading the charge to Garden in its full detail. He highlighted the fact that the circumstance of aggravation of being armed was directed specifically to her and he adopted the commendable and cautious approach of asking her if she agreed that the plea of guilty as indicated by her solicitor was in fact the plea that she wished to enter. It was after that very careful and thorough approach that Garden confirmed that she did in fact wish to enter a plea of guilty. I do not accept Garden’s evidence where she claims that she was unable to hear what was being said in court. That is an allegation that she has raised for the first time in her oral testimony. If it was true, one would expect that she would have made much mention of it in her affidavit. Furthermore, it is an allegation inconsistent with the evidence, in that she at no time during the committal said that she was having difficulty hearing what was being said. Moreover, her responses to the magistrate clearly demonstrate that she could hear all that was being said.

57. [57]
    Also, in paragraph 18 of her affidavit Garden said:

“On the morning that I was supposed to be sentenced I met with Mr Anderson and the barrister Steve Courtney, who Mr Anderson had briefed to appear on my behalf at the sentence. It was not until then that I learned that the prosecution were continuing to allege the use of a gun in the commission of the offence. I had thought that this issue was to be dealt with before sentencing. It was not until this time that I understood what this meant for me in terms of a sentence. It was not until this time that I was fully aware of the facts that I was pleading guilty to.”

58. [58]
    That passage is quite inconsistent with Garden’s assertion that she at no time realised or understood that the allegation of the use of a weapon was directed at her. She has failed to offer any or any satisfactory explanation as to why she thought that the issue regarding the alleged use of a gun was to be dealt with before sentencing, particularly given that she has made no reference in any of her material to being given such advice by her solicitor.

59. [59]
    I note that Anderson provided Garden with a copy of the Schedule of Facts on 8 February 2013.^[17]A conference was then held between client, solicitor and counsel on 12 February 2013 at the Gympie watchhouse. Anderson has stated that at that conference Garden provided instructions that she accepted the Schedule of Facts. That Schedule of Facts fully details the allegation of the use of a weapon or weapons. It was not until the following day that Garden provided her lawyers with instructions that she was not now accepting that Schedule, noting specifically that she had no knowledge of the weapon and was not acting in concert with the other offenders when the weapon was used.^[18]

60. [60]
    The onus of proof rests on the applicant.^[19]As I have indicated the test is whether letting the plea stand would produce a miscarriage of justice. In Meissner^[20]Dawson J considered the test relating to a miscarriage of justice:

“It is true that a person may plead guilty upon grounds which extend beyond that persons belief of his guilt. He may do so for all manner of reasons: for example to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where 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.”

61. [61]
    For the reasons outlined above, Garden has failed to satisfy me on the balance of probabilities that failing to allow her to change her plea would produce a miscarriage of justice. I accept Anderson’s evidence that he read all relevant details contained in the QP9 to Garden at the watchhouse conference in October 2012 and that she gave him instructions that she intended to plead guilty to the charge and all of its circumstances of aggravation. Her confirmation of that approach was then unambiguously demonstrated in the Magistrates Court at the committal hearing. Furthermore, I accept Anderson’s evidence that Garden was given a copy of the Schedule of Facts on 12 February 2013 and again at that time confirmed her intention to plead guilty. I also accept Anderson’s evidence that Garden asked him at that conference in the watch house in October how all of this (meaning the various circumstances of aggravation) related to her and that he told her that as she was the driver of the vehicle then that would be said to be part of the entire offence. In other words, Anderson had specific recollection of discussing, in effect, how she was a party to the offence. In that regard I note that Garden has never claimed to have no knowledge of the fact that firearms were used during the commission of the offence, rather she says that she did not understand that that part of the allegation was directed at, or in any way relevant to, her.^[21]For the reasons outlined above, I do not accept her evidence in that regard.

62. [62]
    For these reasons I am satisfied that Garden duly admitted before the magistrate that she was guilty of the offence charged in the indictment. Accordingly, the application is dismissed.

Denning – no case submission

63. [63]
    Denning has also made an application that he has no case to answer. Given the outcome of the change of plea application, a no case submission is now redundant. In any event, it was an application made prematurely and would not have been entertained at this stage.

Orders

64. [64]
    Each of the applications is dismissed. I direct that pleas of guilty be entered in respect of each applicant.