R v Vinck[2015] QDC 35

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant has applied pursuant to s 590AA(2)(e) of the Criminal Code 1899 (Qld) for a direction that pleas of not guilty be entered in respect of count 1 and 2 on Indictment 264/14 notwithstanding the respondent’s pleas of guilty entered accordance with the registry committal procedure in the Magistrates Court at Atherton.

Background

2. [2]
   The defendant filed an Acknowledgement of plea from dated 10 February 2014 in accordance with the registry committal procedure. The defendant entered pleas of guilty to both counts at the registry committal hearing in the Magistrates Court in Atherton on 4 March 2014.

3. [3]
   The procedure is governed by s 114 of the Justices Act 1886 (Qld).  By its nature an allocutus is not made and there has been no formal pronouncement of judgment of conviction.

4. [4]
   An indictment was presented to the District Court at Cairns on 19 June 2014 charging the defendant:

1. Count 1 – that on the third day of October, 2013 at ATHERTON in the State of Queensland PAUL HUTCHINSON and BRETT PETER VINCK wilfully and unlawfully set fire to a motor vehicle.
2. Court 2 – that on the third day of October, 2013 at ATHERTON in the State of Queensland PAUL HUTCHINSON and BRETT PETER VINCK attempted to dishonestly gain a sum of money for themselves.

5. [5]
   At the commencement of the hearing of the application the defendant was called upon to enter a plea in respect of each count on the indictment. The defendant was arraigned by audio link pursuant to s 597C of the Criminal Code 1899 (Qld), at which time he pleaded not guilty to each count. 

Relevant Legislation

6. [6]
   Section 600 of the Criminal Code 1899 (Qld) governs the application:

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.

(4)If the court is not so satisfied, or if, notwithstanding that the accused person pleads guilty, it appears to the court upon examination of the depositions of the witnesses that the person has not in fact committed the offence charged in the indictment or any other offence of which the person might be convicted upon the indictment, the plea of not guilty is to be entered, and the trial is to proceed as in other cases when that plea is pleaded.

(5)A person who has been committed for sentence may plead any of the other pleas mentioned in section 598.

Issue

7. [7]
   It is not in dispute that the defendant pleaded guilty at the registry committal stage, and I am satisfied he did so.

8. [8]
   The issue is whether, notwithstanding that the defendant pleaded guilty, it appears to the Court upon examination of the depositions of the witnesses that the person has not in fact committed the offence charged in the indictment.

Test

9. [9]
   The most recent, and indeed only, decision on point is R v Shipley [2014] QSC 299.  In that case, McMeekan J considered the construction and application of s 600(4) in these circumstances to decipher the appropriate test laid down in the statute.  At paragraph [62], his honour distinguished the test from that of s 108 of the Justices Act 1886 (Qld) which deals with the duty of the justices on a committal hearing to either discharge or commit the defendant. There the test is in this form (when discharging): if “the justices are of the opinion that the evidence is not sufficient to put the defendant upon the defendant's trial for any indictable offence…”. At paragraph [74] His Honour referred to R v GV [2006] QCA 394 at [40] where the Court (Jerrard JA, Jones and Atkinson JJ) pointed out the applicable principles that apply to the setting aside of a plea as follows:

“The difficulty for the applicant in this case is that his conviction was based on his plea of guilty. A person of full age and capacity has a choice whether or not to plead guilty or not guilty to a charge whether they are in fact guilty or not guilty. A court is entitled to act on such a plea when it is entered in open court. The entry of a plea of guilty is an admission of all the elements of the offence. It is of course an admission not just to all the elements of the offence but also that any available defences have been negatived. It follows that in order to set aside a plea of guilty it is not sufficient for a person to say for the first time on appeal that he or she is not in fact guilty of the offence. A conviction entered on the basis of a plea of guilty will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. If the applicant can show that a miscarriage of justice has occurred, he or she should be allowed to withdraw the plea of guilty and have the conviction set aside.”

10. [10]
    He then concluded at [74] that:

“In my view the test laid down in s 600(4) for the setting aside of a plea is not greatly different from the test discussed in R v GV above and applied in later cases such as Nerbas. The concern is not to permit a plea to stand if there has been a miscarriage of justice. I conclude that the statute requires that I must come to the positive view that Ms Shipley has not in fact committed the offence charged.”

11. [11]
    R v GV [2006] QCA 394 reflects the existence of an inherent discretion in the Court to permit a change of plea of guilty to a plea of not guilty, notwithstanding a plea guilty below.  It is clear that the inherent power will only be exceptionally exercised and it is a power concerned to prevent a miscarriage of justice

12. [12]
    In Maxwell v R (1996) 184 CLR 501, Toohey J referred to the Court's inherent power to allow a defective plea of guilty to be withdrawn and a conviction on various grounds including: that the accused did not understand the charge; or did not intend to admit guilt; or that on the facts admitted on the plea he could not in law have been guilty of the offence; or that the plea was induced by intimidation, improper inducement or fraud.  His Honour said at 522:

"This is part of the inherent jurisdiction of courts to see that justice is done and some, if not most, of the decisions mentioned are explicable on the footing that, in the view of the Court, the accused lacked full understanding of the plea or there was some other vitiating factor."

13. [13]
    At 510-511 Dawson and McHugh JJ said:

"An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial Judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the Judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.

The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial Judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty."

14. [14]
    In the present case, there is no suggestion that the pleas the defendant made were in any way equivocal. Further, it seems to me that s 600 is entirely silent, as is the Code, and does not seek to displace the inherent power of the Court to exercise a discretion to permit a plea of guilty actually made or directed to be entered to be vacated so that a plea of not guilty may be entered, and the matter may go to trial.

15. [15]
    My review of the authorities clearly establishes to my mind that the test in s 600(4) is not invoking the inherent power of the Court, and the Court must apply the words found in provision itself. The test is a simple one, which in my view needs no further elucidation by significant examination of analogous provisions.  To use other language to define the test (as was contended for in this case by the prosecutor relying on the reasoning of McMeekin J in R v Shipley) only diverts the decision maker from the relevant considerations.  Of course, the statute ought not be applied to effect a miscarriage of justice, so it remains important to apply the test as defined by s 600(4) in-keeping with, but not diverted by, the broad principle laid down by the authorities.

16. [16]
    In order for the application to succeed, it must appear to the Court, upon examination of the depositions of the witnesses, that the defendant has not in fact committed the offence charged in the indictment.

Offences Charged

17. [17]
    Count 1 on the indictment is the offence of arson under s 461(1)(b) of the Criminal Code.  A person may lawfully set fire to property as an agent of the owner and with the owner’s consent: s 458(1).  However, by virtue of s 459(1) where an otherwise lawful burning is done with intent to defraud any person, it is unlawful.

18. [18]
    The elements of the offence of arson are:

1. That the defendant set fire the car
2. That he did so wilfully, and
3. That he did so unlawfully, that is, with intent to defraud any person.

19. [19]
    Count 2 on the indictment is the offence of attempted fraud under s 408C(1)(d) and s 535 of the Criminal Code.  By virtue of s 535, if a person attempts to commit a crime, the person commits a crime.  The elements of the offence of attempted fraud, insofar as they are relevant here, are:

1. That the defendant attempted to gain a benefit or advantage, pecuniary or otherwise, for any person; and
2. That the action of the defendant must have been done dishonestly, that is, dishonest by the standards of ordinary honest people and that the defendant realised that what he did was dishonest by those standards.

Whether the defendant has not in fact committed the offence.

20. [20]
    By using the term “in fact” by reference to the depositions, the legislature has imposed a sterner test to be met before a plea of guilty would be disturbed. In my view, the term conveys a requirement that an examination of the depositions identifies cogent evidence that the defendant has not, in reality or actuality, committed the offence.

21. [21]
    Speaking of the degree of cogency which the evidence on a criminal charge must reach before a defendant can be convicted, Denning J said in Miller v Minister of Pensions [1947] 2 All ER 372 at 373-4:

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability.  Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt.  The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.  If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

22. [22]
    For similar reasons, I opine that s 600(4) calls for a designedly exacting standard of proof less vulnerable to error, being the criminal standard of proof

Examination for Depositions

23. [23]
    The facts to be gleaned from the depositions are clear on all elements, save for the elements of fraud (being the third element of count 1, and count 2). The defendant’s counsel argued that there was a gap in the proof of evidence of intent to defraud.

24. [24]
    During the police interview the following exchanges occurred according to the transcript record of interview Page 12, Line 25 to Page 14, Line 40:

SCON BEATTS: In what context? What – why were you talking about the vehicle?

VINCK: He um just wanted to get rid of it.

SCON BEATTS: Mmm-hmm. Why is that?

VINCK: I don’t know. He just wanted to get rid of it so um maybe insurance, I’m not sure. I don’t know.

SCON BEATTS: Mmm-hmm.

VINCK: Whether he had it fully covered or whatever, um—

SCON BEATTS: Why do you say insurance?

VINCK: Well, I could only – I only assumed that that’s what it could – that’s what he’d want to torch it for.

SCON BEATTS: Mmm-hmm.

VINCK: Well, I don’t see why else he’d want to ruin a good vehicle like that.

SCON BEATTS: Mmm-hmm. Yeah. Well, was that discussed?

VINCK: What?

SCON BEATTS: Was the insurance side of things discussed?

VINCK: No. No.

SCON BEATTS: No?

[Record of Interview - page 13]

VINCK: The insurance side of things weren’t discussed, no.

SCON BEATTS: Okay. So what – what else was said that that conversation?

VINCK: Just that I – he would give me some money, $500 to do it.

SCON BEATTS: Okay.

VINCK: At first I um I didn’t do it and for some stupid reason I lost my brain and—

SCON BEATTS: All right. So on the day we’re talking here, you’re discussing torching the car; is that correct?

VINCK: Huh?

SCON BEATTS: On this day about a week ago you were walking around the van park and youse were talking about torching the car.

VINCK: Yeah.

SCON BEATTS: That’s correct?

VINCK: Yes

SCON BEATTS: And you’re saying not that on that particular day you’ve not agreed to it. Is that right?

VINCK: Yeah.

SCON BEATTS: Okay. And for what reason didn’t – didn’t you want to do it?

VINCK: I – because it’s arson.

SCON BEATTS: Yeah.

VINCK: And--

SCON BEATTS: Fair enough.

VINCK: -- I might as well just put a bullet in my head.

SCON BEATTS: Mmm-hmm.

VINCK: The other night.

SCON BEATTS: Yeah.

VINCK: It would have been a better idea, I think.

SCON BEATTS: Okay. So you didn’t want to do it and what did he say when you said you didn’t want to do it?

VINCK: Nothing.

[Record of Interview - page 14]

SCON BEATTS: Didn’t – Didn’t go on about it?

VINCK: No.

SCON BEATTS: Nothing. Well, on that particular day that we keep going back to were – were the details of how you were going to go about doing it discussed?

VINCK: No, there were no details then. It was just up to me and how I’d do it.

SCON BEATTS: Mmm-hmm. Okay. And did you – and tell me what was said about how you would do it?

VINCK: I just said I’d use petrol.

SCON BEATTS: Mmm-hmm.

VINCK: Throw it – throw it in there and then light it.

SCON BEATTS: Throw it in where?

VINCK: Into the vehicle.

SCON BEATTS: Okay. And what – what did he say to that?

VINCK: Mmm.

SCON BEATTS: What did Paul say to that idea?

VINCK: Whatever.

SCON BEATTS: Whatever. Okay. Was it discussed how – um so I think you said that insurance wasn’t really discussed but you only assumed that; is that right?

VINCK: Yeah.

SCON BEATTS: So the value of the insurance wasn’t discussed?

VINCK: No.

25. [25]
    Then at page 34, Line 51 to Page 35, Line 10 of the record of interview, the officer put a loaded question to the defendant and elicited the following responses:

SCON BEATTS: Yeah. All right. So even though the specifics, I guess you could for the want of a better term, um were discussed about how and when the arson of this vehicle was gonna take place Paul, as far as you um your version is is Paul was fully aware that it was gonna happen but he didn’t know when and where and how but there were – there were some conversations between you and Paul about receiving an amount of money whether it be $500 or whatsoever once insurance came back through; is that correct?

VINCK: Yes.

SCON BEATTS: Okay. And these injuries that I can see obviously mainly to your face there are a result of the petrol fumes expanding because you couldn’t get the match in there quick enough and it’s just given a much bigger explosion than you’ve anticipated?

VINCK: Yes.

26. [26]
    I accept the defendant’s submission that the summary put to the defendant at page 35 of the Transcript of the Interview should be read in the proper context of the equivocal comments made by the defendant earlier in the interview recorded at pages 12 to 13 of the Transcript.

27. [27]
    Even so, it seems to me that the defendant accepted that he was asked to burn a car by a man he believed to be the owner. He bought petrol and used it to set fire to the car in the early morning hours of 3 October 2013. He was injured by the violent ignition of the petrol and he left his mobile and other items at the scene. The admissions made by the defendant in the interview are that he would be paid $500 for burning a car, which he called ‘arson’, on the assumption it was for an insurance claim. The defendant even conceded that he couldn’t see “why else he’d want to ruin a good vehicle like that” referring to the owner.

28. [28]
    In the absence of direct evidence, it seems to me that there is a strong interference that the burning was for the purpose of a fraudulent insurance claim for the benefit of the owner.  Such an inference is both consistent with the guilt of the accused and, in my view, the only rational inference available on the examination of the depositions.  Therefore, the application must fail in respect of count 1.

29. [29]
    I am not satisfied that the defendant did not attempt to gain a benefit or advantage, pecuniary or otherwise, for any person. The depositions disclose cogent proof of evidence that he acted dishonestly by the standards of ordinary honest people and that he realised that what he did was dishonest by those standards. Therefore, the application must also fail in respect of count 2.

Conclusion

30. [30]
    For these reasons, I am not satisfied upon examination of the depositions of the witnesses that the defendant has not in fact committed the offences charged in the indictment.

Order

31. [31]
    I order that pleas of guilty be entered in respect of counts 1 and 2 on indictment 264/14 notwithstanding the respondent’s pleas of not guilty entered on 23 February 2015.

Judge DP Morzone QC

Chambers