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Thammaruknon v Queensland Police Service[2016] QDC 31

Thammaruknon v Queensland Police Service[2016] QDC 31

DISTRICT COURT OF QUEENSLAND

CITATION:

Thammaruknon v Queensland Police Service [2016] QDC 31

PARTIES:

MANATNAN THAMMARUKNON

(appellant)

v

QUEENSLAND POLICE SERVICE 

(respondent)

FILE NO:

APPEAL NO: 53 of 2015

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

26 February 2016

DELIVERED AT:

Cairns

HEARING DATE:

29 January 2016

JUDGE:

Morzone QC DCJ

ORDER:

  1. The appeal is allowed.
  1. The application to re-open proceedings pursuant to s 147A of the Justices Act 1886 (Qld) is allowed, and the orders made on 16 November 2015 are set aside.
  1. The convictions and orders made on 9 March 2015 are set aside.
  1. I direct that pleas of not guilty be entered in respect of all four charges against the appellant.
  1. The proceeding in respect of the complaint and summons is remitted to the Magistrates Court Mareeba Registry for rehearing (including re-arraignment) before a different magistrate in due course.
  1. If either party seeks costs of the appeal, that party will file and serve submissions by 4pm on 11 March 2016 and the other party will file and serve submissions in response by 4pm on 18 March 2016.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – disobeying the speed limit; failing to stop; contravening a requirement and obstruct police – mode of hearing of appeal – application to reopen pursuant to s 147A of the Justices Act 1886 – Equivocal plea – mistake about nature of charges – lack of comprehension of English 

Legislation

Justices Act 1886 (Qld), ss 145 & 147A

Police Powers and Responsibilities Act 2000 (Qld), ss 69A, 74, 78, 79A, & 754(2)

Penalties and Sentences Act 1992 (Qld), s 188

Criminal Code (Qld), s 600(4)

Cases

Liberti (1991) 55 A Crim R 120

R v Mundraby [2004] QCA 493

R v Tommerkand (unreported, CA No 233 of 1994)

R v DC (1999) QCA 486

R v Williams ex parte Biggs [1989] 1 Qd R 594

Boyd v Sandercock ex parte Sandercock [1990] 2 Qd R 26

Maxwell v The Queen (1996) 184 CLR 50

Di Camillo v Wilcox [1964] WAR 44

Slater v Marshall [1965] WAR 222

Meissner v The Queen (1994-95) 184 CLR 132

R v GV [2006] QCA 394

R v Shipley [2014] QSC 299

Gallo v Dawson (1990) 93 ALR 479

Neil v Nott (1994) 121 ALR 148

R v Hura (2001) 121 A Crim R 472

R v Mundraby [2004] QCA 493   

R v The Justices at Cloncurry; Ex parte Ryan [1978] Qd R 213.

R v Murphy (1979) 1 A Crim R 398

SOLICITORS:

J. Gerry for the appellant

A. Hilton of the Office of Director of Public Prosecutions for the respondent

  1. [1]
    The appellant, a Thai national, has endured a series of proceedings with the view to reopen proceedings, change her plea and contest four traffic charges, namely: driving in excess of the speed limit; failing to stop; failing to give her correct name; and obstructing police.

Background

  1. [2]
    The circumstances of the alleged offending were that on 29 December 2014 (count 1) at Koah, the appellant drove a car at a speed over the speed limit of 100 km per hour which applied to the Kennedy Highway, Mareeba; (count 2) at Mareeba the appellant as the driver of a car, having been given a direction to stop the car, failed to stop the car as soon as reasonably practicable in circumstances where a reasonable person would stop the motor vehicle; (count 3) at Mareeba the appellant contravened a requirement given by a police officer to provide her full and correct name; and (count 4) at Mareeba the appellant obstructed a police officer in the performance of his duties.
  1. [3]
    The appellant’s vehicle was impounded by the police officer pursuant to ss 69A, 74 and 754(2) of the Police Powers and Responsibilities Act 2000 (Qld) (“the PPRA”).
  1. [4]
    The matter first came before the Mareeba Magistrates Court on 19 January 2015. The police prosecutor appeared and the appellant appeared unrepresented. After disavowing her true identity, the appellant sought “an order immediately to return of my property” (being a reference to the impounded vehicle.  The magistrate proceeded to read the charges and asked the appellant “How do you plead to those four charges?”  In response the appellant purported to plea guilty “to the facts” and later expressed a lack of understanding.
  1. [5]
    The police prosecutor then invited the magistrate to adjourn the matter for three weeks to have a Thai speaking interpreter available. The magistrate acceded to the submission and made an order for an interpreter. He also suggested that the appellant might benefit from obtaining some legal advice.
  1. [6]
    The appellant again request: “And I require an order immediately to return my property”; but the magistrate refused to address the issue saying:  “…Well, you’re not going to get one of those.  …Well, I’m not interested.  It’s got nothing to do with me.”
  1. [7]
    The file is endorsed (variously typed, handwritten and ink stamp words and abbreviations):

Date: 19/01/2015

For the Prosecution:  ML Marcum, Police Prosecutor

For Defence:  DiP  N/R

QWIC

PG – to the facts.

By consent Defendant is remanded to appear in this Court at 8:30 am on the 9 day of 2 2015 for MENTION.

Bail Undertaking enlarged accordingly.

I order the provision of a THAI Interpreter.

  1. [8]
    The matter was again mentioned on 9 February 2015 in the absence of an interpreter. The appellant was assisted by Mr Anderson (as a friend of the court). I have not been provided with a transcript of that day, however, the file was endorsed (variously typed, handwritten and ink stamp words and abbreviations):

Date: 09/02/2015

For the Prosecution:  Hughes, Police Prosecutor

For Defence:  DiP  N/RMr Anderson

QWIC

Wishes to dispute some of the facts.

By consent Defendant is remanded to appear in this Court at 8:30 am on the 9 day of 3 2015 for MENTION.

Bail Undertaking enlarged accordingly.

I order an Interpreter be provided.

  1. [9]
    On 9 March 2015 the matter came on for hearing not mention (as endorsed). The appellant was again appeared unrepresented but had the benefit of the court-appointed interpreter. After identifying the interpreter, the exchanges between magistrate and the appellant (through the interpreter), where confused and confusing. The magistrate tried to explain the previous indications given by the appellant, and the appellant (through the interpreter) said she admitted the charges, but required the prosecutor to prove them with evidence, and she also referred affidavit evidence as setting out her case.
  1. [10]
    Despite this lack of clarity, the magistrate proceeded on the basis of a plea of guilty taken on 19 January 2015. The appellant was convicted of the four offences and sentenced the appellant for charges 1, 3 and 4 – a fine of $1,000 with convictions recorded; and for charge 2 - a probation order for a period of 9 months with a conviction recorded and disqualification from holding and obtaining a driver’s license for 2 years. Her vehicle was impounded for 90 days.
  1. [11]
    The appellant filed an appeal against her conviction and sentence to this court on 2 April 2015. She appeared unrepresented (assisted by an interpreter) at the appeal hearing on 24 July 2015 before His Honour Judge Harrison. His Honour formed the view that a factual misunderstanding infected the plea. His Honour Judge Harrison acceded to the prosecutor’s suggestion for the matter to be returned tothe Magistrates Court for the appellant to apply to reopen the case under s 147A of the Justices Act1886 (Qld) (“the Act”).
  1. [12]
    The appellant, with the benefit of legal representation, made the foreshadowed application to reopen the proceedings to facilitate a change of plea and a contested trial. After several adjournments, the application was determined on the papers.  On 16 November 2015 the magistrate found that s 147A did not apply and he dismissed the application in a written decision.
  1. [13]
    The appellant again appeals to this court.

Appeal Issues

  1. [14]
    The appellant argues that the magistrate erred by failing to accept that an error of fact resulted from equivocal pleas or pleas vitiated by mistake as to the nature of the charges or a lack of comprehension of the character or significance of the pleas. The appellant relies upon a combination of errors or defects in the series of hearings as giving rise to a miscarriage of justiceto warrant reopening the proceeding.
  1. [15]
    It seems to me that the determinative questions are:
  1. Was the application properly made pursuant to s 147A of the Act?
  1. Were the appellant’s pleas equivocal or vitiated by mistake as to the nature of the charges or vitiated by a lack of comprehension of the character or significance of the pleas?
  1. If so, were the convictions, sentence or orders based on an error of fact?
  1. Should an order be made to reopen the proceedings, and after giving the parties an opportunity of being heard, set aside the conviction or vacate or vary the order in either case to conform with the facts?

Application to re-open

  1. [16]
    It is trite to say that the Magistrates’ Court proceedings were finished once convictions and sentences were pronounced and recorded. Kirby P (as His Honour then was) in Liberti(1991) 55 A Crim R 120 at 121–122, said:[1]

“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.”

  1. [17]
    Section 147A contains a statutory exception to the principle of finality, as follows:

147A Power of justices to reopen proceedings and rectify orders

  1. (1)
    This section does not apply to an error in a sentence, or to an error consisting of a failure to impose a sentence, for which a court may reopen a proceeding under the Penalties and Sentences Act 1992, section 188. 

  1. (2)
    Where justices record a conviction or make an order that is based on or contains an error of fact, those justices or any other justices may, on the application of a party to the proceedings or a clerk of the court reopen the proceedings and after giving the parties an opportunity of being heard, set aside the conviction or vacate or vary the order in either case to conform with the facts. 


 Example —


An order may be varied to correct the defendant’s name. 


  1. (3)
    The powers conferred by subsection (2) include power to set aside a conviction or vacate or vary an order where the justices are satisfied that—
  1. (a)
    the conviction or order has been recorded or made against the wrong person; or 

  1. (b)
    the summons issued upon the complaint originating the proceedings that resulted in the conviction or order did not come to the knowledge of the defendant; or 

  1. (c)
    the defendant in the proceedings that resulted in the conviction or order has been previously convicted of the offence the subject of the complaint originating those proceedings; or 

  1. (d)
    the conviction or order recorded or made against the person was incorrectly ordered or made because of someone’s deceit. 

  1. (4)
    The justices may, upon the hearing of an application pursuant to this section, take evidence orally or by affidavit. 

  1. (5)
    An application pursuant to subsection (2) shall be made within 28 days after the date of the conviction or order or such further time as the justices allow upon application made at any time in that behalf. 

  1. [18]
    Subsection 147A(1) of the Act resulted from an amendment in 1997 to exclude the operation of the provision to a sentencing error subject of s 188 of the Penalties and Sentences Act 1992 (Qld).  Thepower under s 147A(2) is limited to permitting the reopening of proceedings where a conviction or order is based on or contains an “error of fact”, and empowers the court to set aside the conviction or vacate or vary an order to conform with the facts.  It goes further than the court’s inherent jurisdiction under the so called “slip rule” to correct an error arising out of an accidental slip or omission. 
  1. [19]
    The provision gave the appellant the only avenue to reopen the case in the Magistrates Court subject to demonstrating that the convictions or orders were based or contained an “error of fact”. The grounds of the appellant’s application pursuant to the provision were that:

“The convictions were recorded based on an error of fact, namely that the applicant’s pleas of guilty to the four charges were not sufficiently unequivocal so as to allow the pleas to be accepted.  Consequently, the convictions and orders recorded against the applicant were incorrectly ordered.  The applicant was mistaken as to the nature of the charges to which she was pleading, and as to the character or significance of the pleas of guilty she was entering.”

  1. [20]
    In detailed written submissions the appellant asserted that the pleas of guilty were equivocal and that that therefore amounted to an error of fact.
  1. [21]
    The magistrate refused the application as being misconceived[2]and said:

[23]  To me the cases confirm that the section applies to “facts” before the Court.  The section is not designed to provide a remedy where it is alleged that the plea of guilty was improperly entered by the Court”

[24] I do not accept that the applicant’s pleas were equivocal nor that if they were that that would amount to an error of fact as envisaged by the section.

  1. [22]
    In his reasons, His Honour considered the cases of R v Tommerkand (unreported, CA No 233 of 1994, R v DC (1999) QCA 486 and by reference R v Williams ex parte Biggs[1989] 1 Qd R 594 and Boyd v Sandercock ex parte Sandercock[1990] 2 Qd R 26)[3]on the threshold question of whether the application fell within the scope of s 147A of the Act. 
  1. [23]
    R v DC and Sandercock’s Case involved asserted sentencing errors which is now resolved by the 1997 amendments and fall within s 188 of the Penalties and Sentences Act 1992 (Qld).Otherwise, the following principles relevant the scope of s 147A(2) can be distilled from the cases:
  1. The principal consideration must be given to what facts were before the court, asserted or accepted at the original hearing.[4]
  1. Was the magistrate permitted to proceed on the facts adduced before the court; was there evidence to support the magistrate acting on the plea, or otherwise some basis to discourage the magistrate from adopting that course.[5]
  1. The section does not authorise a re-opening to enable a conviction to be reconsidered on they basis of additional evidence going to the merits which was not presented during the original hearing.[6]
  1. [24]
    I am unable to discern from those cases, any support for the primary magistrate’s conclusion that the section is not designed to provide a remedy where it is alleged that the plea of guilty was improperly entered by the court; or any support for his conclusion that an equivocal plea would not amount to an error of fact envisaged by the section. Therefore, I respectfully conclude that His Honour acted upon a wrong principle, and having done so, failed to properly consider the quality of the plea in making his decision.
  1. [25]
    In this case, in order to determine the facts before the magistrate on 9 March 2015, consideration must be given to the efficacy of the defendant’s underlying pleas. Aclear and unambiguous plea of guilty will constitute an admission of all the facts essential to the offence,[7]thereby permitting the court to proceed on those facts.  If a court is doubtful whether evidence can be produced on all essential points of the charge, the judge or magistrate is entitled to advise the defendant to withdraw a plea of guilty.[8]If, however, the underlying plea is a nullity, or otherwise vitiated by error, then the facts founded upon that plea will be fatally flawed and the court will be discouraged from acting on them.

Error of Fact

  1. [26]
    Here, the magistrate proceeded to deal with the defendant on 9 March 2015 as a contested sentence, having accepted the pleas (made in the absence of an interpreter on 9 January 2015).
  1. [27]
    The prosecutor narrated the facts constituting the offending during the course of the hearing, as follows:[9]

At about 7.40 am on the 29th of December 2014, police from Mareeba were performing mobile patrols along the Kennedy Highway by Mareeba. …

Police had passed through the area previously and observed the 100 kilometre per hour speed signs were present and visible.  Police observed a red Hyundai hatch travelling towards them.  It was the only vehicle approaching them and formed the opinion the vehicle was travelling in excess of 100 kilometres per hour.  Police activated the mobile radar and it displayed a target speed of 111 kilometres per hour which was - …

This was consistent with police estimates of the vehicle speed and police – police activated the emergency lights and flashed the high-beam lights of the police vehicle.  Police then performed a U-turn by the Hyundai and accelerated up to be directly behind it.  The police vehicle was directly behind the Hyundai.  Emergency lights and sirens were still activated and police, again, flashed the high-beam lights of the vehicle in an effort to attract the attention of the driver.  The driver made no attempt to pull to the road shoulder.  Police continued to follow the vehicle with the emergency lights activated and siren activated and flashing the high-beam headlight.  The vehicle continued to make no attempt to pull over despite passing numerous locations which were safe to do so.  At overtaking lanes west of Davies Creek State Forest police moved the police vehicle up to the side of the Hyundai and activated the horn of the police vehicle constantly in an attempt to get the driver to pull over.  The driver continued with no attempt to pull over.  Then, as it approached the end of the overtaking lane, the vehicle did, in fact, pull to the road shoulder and stop.  This distance from first being observed by police to when she stopped was 6.8 kilometres.  The driver stated she did not know police wanted her to stop and it was the first time she had been intercepted by police.  Police then asked the driver to produce her driver’s licence and she stated she did not have it with her.  Police then asked the driver to provide her full and correct name and she refused then identified herself as a sovereign citizen and stated to police she was not a corporation and that police had no power over her. …

Police then explained to the driver it was an offence to fail to provide her full name – full and correct name – and she should do so.  She again refused.  Police then asked the driver if the real reason she had not stopped the vehicle when police were behind her was because she did not want to stop for police because she was a sovereign citizen.  She agreed with this.  Police then explained to the driver if she did not provide her details, she would be arrested and taken to the Mareeba Watch-house.  She continued to refuse and stated that police should speak with her husband as they knew him.  Police explained they did not know who she was so they had no idea who her husband was.  She asked if she could call her employer and let them know she would be late.  In an effort to reach a compromise with the defendant, police agreed to this request and she did call them.  She then asked to call her husband which again was allowed.  She, after speaking with him in English for a short period, started to speak to him in a foreign language.  She then started to fidget around in her car, placing one hand under her driver’s seat and then back on the steering wheel. …

Police then reached in and physically restrained the driver and advised her she was under arrest and began to place handcuffs on her.  She began to struggle and was instructed by police not to struggle and resist them, however she continued to struggle and due to the small size of her wrists actually managed to slip her wrist through one closed cuff.  She was re-handcuffed and restrained on the ground and she continued to struggle despite repeated instructions to stop doing so.

  1. [28]
    Before proceeding to sentence, the magistrate identified the factual basis of the conviction and orders as follows:[10]

I accept that she had not intentionally meant to flee from the police as that term might be understood.  I accept that when apprehended by police she did panic.  However, I also accept the facts put forward by the Prosecution as to the events which occurred.  To avoid the heavy, mandatory penalties provided for the fail to stop charge, I intend to offer to the defendant in respect of that charge a period of probation.  In respect to the other three offences I will impose one penalty for those three offences.

  1. [29]
    By proceeding in this way, the appellant argues that the facts relied upon by the magistrate to found the conviction were flawed and resulted in an “error of fact” warranting reopening and consequential orders, including setting aside the plea. The appellant argues that the pleas, upon which the facts were founded, were equivocal, vitiated by mistake as to the nature of the charges or a lack of comprehension of the character or significance of the pleas. I deal with each of these grounds now.

Efficacy of Guilty Plea

  1. [30]
    In Meissner v The Queen(1994-95) 184 CLR 132 at 141, Brennan J, Toohey J and McHugh J held:

“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 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, providing the plea is entered in exercise of free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a Court does not act on such a plea, even if the person entering it is not in truth guilty of the offence.”

  1. [31]
    Dawson J, whose dissent as to the outcome of the appeal does not affect the validity of the following statement of principle, said, at 157:

“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in 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.  But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.  For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.”

  1. [32]
    In Maxwell v The Queen(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 in proper inducement or fraud.  His Honour said at page 552:

“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.”

  1. [33]
    In the same case at pages 510 to 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 of the essential elements of the offence.  Of course, if the trial judge forms a 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 and 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.”

Lack of Understanding

  1. [34]
    It is submitted that the appellant misunderstood the character or significance of the pleas.
  1. [35]
    Section145 of the Act prescribes the process of taking a plea as follows:

145 Defendant to be asked to plead

(1)  When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads.

(2)  If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any other manner authorised by law.

  1. [36]
    When the proceeding first came before the Mareeba Magistrates Court on 19 January 2015, the magistrate proceeded to read the charges and asked the appellant “How do you plead to those four charges?”  This was followed by the following exchange:

APPELLANT:  I plead guilty to the fact. This is not my name in all capitals. This is a [indistinct]…

MAGISTRATE: You plead guilty to the charges, do you?

APPELLANT: To the facts.

MAGISTRATE: To the facts?Okay. Do you plead guilty to the facts of your own free will? Do you plead guilty to the facts of your own free will?

APPELLANT: Yes.

MAGISTRATE: You do?

HUSBAND:  Sir, I’d like to [indistinct] I’m Lee’s husband. And her English, as you can understand, is very poor. She was very intimidated by the police.

APPELLANT: I don’t understand.

HUSBAND:  She – the road did not allow a safe – for her safety to pull over.

MAGISTRATE: You can either leave now or you can sit down. Sit down or leave. One or the other.

HUSBAND:  I have a right to talk here.

MAGISTRATE: Sit down or leave. You have no right at all. Just sit down or leave.

  1. [37]
    On its face the substance of each charge was stated to the appellant, the magistrate asked how she pleaded, in purported compliance with s 145(1) of the Act. However, it was clear at that stage that the appellant lacked the requisite capacity to proficiently comprehend English.  There was also other indicia of this incapacity:  her immediate focus was distracted by the concern for the “return of my property” referring to the impounded car;[11]she seemed to distinguish a plea to the “to the charges” and “to the facts”;[12]she exclaimed “I don’t understand” after her husband sought to intervene in the proceeding. 
  1. [38]
    The police prosecutor properly invited the magistrate to adjourn the matter for three weeks to have a Thai speaking interpreter available. The magistrate acceded to the submission but at the election of the appellant as follows:

MAGISTRATE: Thai. I can arrange for an interpreter for you, if you like, although you seem to be indicating that you understand. So the choice is yours. You appear to have entered a plea of guilty to the facts.But if you like, I will adjourn the matter so that you can get – so that I can get an interpreter here to assist you. Would that be of any benefit to you? Would that be a benefit?

APPELLANT: Yes.

  1. [39]
    Magistrates Courts Practice Direction No 7 of 2010, paragraph 5 provides that “If the court is satisfied that the interests of justice require that an interpreter be appointed to assist a defendant’s comprehension of the proceeding or to interpret between the court and a defendant giving evidence, the court will order the appointment of an interpreter and the court will bear the cost of interpreting between the court and the defendant.”
  1. [40]
    His Honour ordered that an interpreter be provided. At that point, it seems to me, His Honour accepted that the appellant lacked the requisite understanding of the nature of the charge without interpretation assistance. The magistrate also appreciated that the appellant might benefit from obtaining some legal advice and made consequential orders as follows:

MAGISTRATE: Okay.  It might be that you can obtain some legal advice as well.  That might be a benefit to you. Okay.  Then you’ll be remanded to appear in this court at 8:30 on the 9th of February.  You’re on bail.  Your bail is enlarged and I order that an interpreter be provided to assist the court in the matter.  Thank you.

  1. [41]
    The interpreter was not present when the matter was next before the court on 9 February 2015, and the appellant remained unrepresented. The matter was adjourned for “mention”; and again the provision of an interpreter was ordered.
  1. [42]
    The interpreter was present when the matter again came before the court on 9 March 2015. Notwithstanding the earlier orders and adjournments to facilitate an interpreter, the magistrate made no attempt to re-arraign or otherwise comply with s 145(1) with the benefit of the interpreter (who was never sworn in). Instead, he proceeded on the basis that the appellant had entered a “guilty” plea on 19 January 2015 and on the basis of the facts founded by that plea.[13]
  1. [43]
    It seems to me that the plea of 19 January 2015 was vitiated by the plaintiff’s incapacity to comprehend or understand English. At that stage, in my respectful view, His Honour ought to have treated the plea as not genuine, and ought (it is not a matter of discretion) to have directed that a plea of not guilty be entered, and adjourned the matter for further arraignment with an interpreter. Since there was no effective arraignment in compliance with s 145(1), there was no factual basis established or supported by any plea to proceed to conviction and orders.

Equivocal Plea

  1. [44]
    The appellant also submits that the pleas were equivocal, therefore, not genuine and should have been set aside.
  1. [45]
    At the first mention on 19 January 2015, the appellant curiously pleaded “to the facts”. Indeed, it appears from the transcript and the endorsed orders that the magistrate apparently accepted that the plea of guilty (“PG”) was somehow limited “to the facts”. She seemed to distinguish a plea to the “to the charges” and “to the facts”;[14]
  1. [46]
    At the second mention on 9 February 2015, it is notable that the magistrate endorsed the file: “wishes to dispute some of the facts”.
  1. [47]
    Then on 9 March 2015, the appellant’s position as interpreted was both confused and confusing. The appellant through the interpreter made several attempts to interpret and communicate her flawed understanding (with my emphasis):[15]

MAGISTRATE:  Right. And you’re fluent in, I believe, the Thai language?

INTERPRETER:  Yes, your Honour.

MAGISTRATE:  Okay. Now, just in summary, the defendant today is charged with speeding, failing to stop a motor vehicle, contravening a direction and obstructing a police officer. And it appears that when charged with these offences she entered a plea of guilty to the charges, or, as she said, guilty to the facts but wished to dispute some of the facts and that’s where we became a bit bogged down.

INTERPRETER:  Yes, your Honour.

MAGISTRATE:  I don’t know whether you wish to take the opportunity to speak to the defendant to ensure that you’re able to converse with her.

INTERPRETER:  Yes, your Honour. Sure. Your Honour, she – we can – we do understand each other very clearly, and she does admit to the charges. However, what she is disputing is that she would like to see the evidence from the prosecutor such as video camera evidence that she had – she was speeding.

MAGISTRATE:  Well, I don’t know what evidence there is, but it’s – she’s entered a plea of guilty to the charges and she admits the charges, so you generally don’t admit to the charges if you are still looking for the evidence. So it sort of doesn’t make sense to me to say, “I plead guilty to the facts. I admit the charges, but I want to see the evidence that the prosecutor has.”

INTERPRETER:  Yeah.

MAGISTRATE:  I have some difficulty with that.

INTERPRETER:  Sure. I’ll just clarify with her.

 … [EXCHANGE BETWEEN MAGISTRATE & PROSECTOR]

MAGISTRATE:  Okay. Well, if – there are a couple of options. One is that I can set the matter down for hearing even though there is a plea of guilty. So on a plea of guilty I can set it down for hearing on the facts if the facts are disputed. So – and then I decide whether the facts are this set of facts or this set of facts. Even though there is a plea of guilty but the thing is to determine what the facts are for sentence. So I can do that, which is probably what I’ll do. Or alternatively the matter is set down for a trial and a plea of not guilty, but that doesn’t seem to be what the defendant is doing. So perhaps if you can explain to her. I think – she’s nodding her head anyway, but if you can explain to the defendant for me, please, that I can set the plea of guilty down so that I can take evidence on the plea of guilty to determine just what happened.

INTERPRETER:  Sure.

MAGISTRATE:  I suppose the other problem is that I don’t really understand yet what the dispute is, and often people who plead guilty will have a bit of a different version of events. That doesn’t stop us going ahead and finalising the matter provided it’s not a core issue. So I could probably ---

APPELLANT:  Because [indistinct] this is my affidavit on the bench. I ---

MAGISTRATE:  What’s that?

APPELLANT:  A affidavit.

MAGISTRATE:  Yes, but you see, we don’t do it that way. You might have an affidavit there, but that’s not the way that we take evidence, so ---

APPELLANT:  I’ve got my evidence.

MAGISTRATE:  What I would normally do is hear the facts from the prosecutor and then I’d hear what you want to say and then I guess I determine whether or not there was such a difference in the facts that warranted setting it down for hearing. So I’m wondering whether I should just hear the facts from the prosecutor, bearing in mind that they will have to be translated. And then hear what the defendant wants to say in respect of those facts.

INTERPRETER:  Your Honour, she was just asking whether the prosecutor has the evidence or the information regarding the speeding.

MAGISTRATE:  No. Now, she doesn’t – the prosecutor doesn’t have to have it, because the defendant has entered a plea of guilty to the charges. So I think I’ll just hear the facts. The only –

INTERPRETER:  Maybe I don’t understand.

MAGISTRATE:  What was that?

INTERPRETER:  Your Honour, she’s expressing that she actually doesn’t dispute if – that she has done wrong, but what she is asking for is she wants to see how she was proven wrong. She wants to see the empirical evidence of that she - what she has done is wrong, but she is not disputing if she did it wrong and that’s what she’s expressed.

MAGISTRATE:  Okay. That doesn’t make any sense to me. When you’re charged by the police with an offence and then the court charges you with the offence and you plead guilty to the offence, that is an acknowledgement of the offence.

INTERPRETER:  Yes. I’ll explain that to her.

MAGISTRATE:  Yes. If she disputes the facts she can have a trial as a plea of not guilty or there can be a trial on the facts on a plea of guilty if she disputes the facts. But it doesn’t seem she is disputing them. She just seems to be wanting to put the prosecution to proof after a plea of guilty, which is not the way the court operates.

INTERPRETER:  Yes, your Honour.

MAGISTRATE:  I want the defendant to understand that of the four charges one of them does carry a serious penalty. They all do, I suppose, but one of them carries what’s called mandatory sentence. That is the charge of failing to stop the motor vehicle. The penalty that is provided for by the legislation for that offence – if a fine is imposed, the fine must be 55 penalty units, which in layman’s terms works out at $5500, and if a period of imprisonment is imposed, which is, I guess, unlikely, it must be 55 days’ imprisonment all served in a correctional centre. And there is a mandatory two year disqualification. So that offence, a failure to stop, carries a very heavy penalty. If a fine’s imposed, it’s 55 days in jail and there is, notwithstanding, a minimum two year disqualification. My query is whether or not the defendant wishes to obtain legal advice from a solicitor.

INTERPRETER:  Yes.

MAGISTRATE:  Do you wish to have the matter adjourned to get legal advice, or do you wish to go ahead now?

INTERPRETER:  Your Honour, she’s wondering what – if she wants to finish the proceedings today, what would happen?

MAGISTRATE:  Well, I’ll hear the facts from the prosecutor and then I’ll hear from her and then I’ll take – and then I’ll impose a penalty.

INTERPRETER:  Yes.

MAGISTRATE:  Okay. Take a seat. Thank you. Yes, Sergeant. Now, what I might get you to do is – the defendant appears to have a reasonable understanding of English, but I guess I’m going to have to ask you to interpret as the prosecutor reads the facts. So I’m not sure if there’s a preferred way of doing this but ---

INTERPRETER:  Your Honour, she was wondering, if she just pleads guilty today, what would happen and what would be the outcome for her.

MAGISTRATE:  She has entered a plea of guilty. That was entered back on the 19th of January. And what will happen is that I will hear the facts. Once I’ve heard the facts, I’ll decide the penalty. Yes. Thank you. Take a seat. Take a seat and we’ll hear the facts.

INTERPRETER:  Your Honour, she – she – she is expecting that if she admits and pleads guilty and doesn’t need the facts to be proved today, is that going to change the court proceeding this afternoon?

MAGISTRATE:  No. Just ask her to take a seat. Yes, Sergeant.

  1. [48]
    It is tolerably clear from the interpreted exchange that the appellant’s indication of wishing to plead guilty “to the facts” or admitting “the charges” (or similar expressions) were qualified by her insistence that the prosecution be put to proof. However, the appellant’s qualification only becomes apparent when reference is made to the appellant’s affidavit evidence, which she was at pains to refer to the magistrate.
  1. [49]
    The appellant attempted to file these affidavits in the Magistrates Court Registry of Mareeba on 12 January 2015, but was directed to provide them to the police, believing that they would be considered by the court.[16]The affidavits are exhibits “MT1” and “MT2” to her later affidavit and they bear a receipt stamp of the Police Station Mareeba.  In her affidavit filed in support of the application made pursuant to s 147A of the Act, the appellant deposes to her attempts to convey to the court on 19 January 2015 (and subsequent occasions) her intention that she wished to plead guilty to the facts deposed to in her affidavit.[17]It is not clear why the prosecutor did not produce the affidavits during any hearing.
  1. [50]
    In her affidavit sworn on 12 January 2015, the appellant sets out the circumstances of the events subject of the charges in particular detail:

On the morning about 7.30 am of Monday 29th December 2014 I (Manatnan Thammaruknon : Izard), I’m driving my car on KENNEDY HWY, Mareeba, Qld [4881] to go to work at a Basil Farm on Malone Rd.  I didn’t realize the police vehicle was following my car because I was concentrating on my driving until I saw a police vehicle behind my car.  I tried to find a safe place to park my car after that.  One policeman (he wore a life jacket in black and yellow colour) came to see me.  He didn’t identify himself then he asked me why didn’t you stop your car and he said do you know you drove over the speed limit.

I feel afraid and panic (I’m alone in my car).  I said to the policeman I’m so sorry I didn’t realize your vehicle was following my car and when I realized that I tried to find a safe place to park my car.  I told him I have no experience like this before.  The policeman said you don’t say sorry to me then he asked me for my name and licence.  I stayed silent because I believed in my confusion that it was at home and I still worry about my work because I have to start working at 8.00 am so I asked him please let me call my Boss to let her know about what happened.

I ask about his name He told me his name (Greg Rose) and then he started to intimidate me.  I feel I was threatened and he said to me don’t call your Boss right now you may be call her later but I try to call my Boss.  She didn’t answer then I left a short message that police had stopped my car.  I asked the policeman please let me call my husband to ask for help and advise me what I can do because my English isn’t clear enough to correctly explain to the police.  I would like my husband talk to police and I’m afraid because I’m alone, nobody else and no house around there.  Then I called my husband which at that time I think I will say my name when I finished talking with my husband.  He started to be aggressive then he said you don’t play the game and follow my rules if you don’t give me a name I will arrest you (my husband heard him said these words on the phone) but I’m not finished to ask my husband on his mobile phone.  The policeman pulled out my car key, opened the door, pulled my mobile phone from my hand then handcuffed me.  I’m so shocked and nervous to go against him with automatic shocking then I was thrown to the ground.  I fell down on my belly with the handcuffs behind my back and he put his hand and knee on my back.  It happened so quickly.  I feel I was threatened so much an act of unnecessary violence from the policeman concerned.  To charge me with assault is incorrect because my hand, arm, knee and shoulder were injured.  (Refer to Doctor Report and injury photos).

Then another police van vehicle came with one policewoman and 2 policemen to take me to Mareeba Police Station at the watch house. …

Police put me in the watch house room for about one and a half hours while waiting for my husband who was driving a car from home to get to Mareeba police station.  Then police officer (Greg Rose) invited my husband and me to the interview room and started to interview me for about half an hour.  It was recorded on CD and when the interview finished he gave 1 copy CD for us. …”

  1. [51]
    The appellant also relied upon a corroborative affidavit of her husband in relation to the telephone call. The thrust of this deposition has been repeated in later affidavits, as well as through the interpreter at the hearing on 9 March 2015. During the hearing the following exchange took place during the appellant’s submissions (with my emphasis):[18]

INTERPRETER:  Yes, your Honour.  Your Honour, she said that she actually had no intention to flee from the police car but she actually was not aware that the police was following her for a while and she said that this is actually her first experience of actually being followed by a police car and when she was caught and when she stopped, she expressed that she panicked and she had imagined that the process was actually going to get a ticket and that ticket will be sent home to her.  However, when the handcuffs were put on her hands, she felt – she panicked so that’s why she automatically resisted but she said that this is – she’s never been arrested before and this is her first experience and she did not mean to refuse the arrest by the police.

BENCH:  Is there anything else?

INTERPRETER:  Yes, your Honour.  She also explained that – your Honour, she also expressed that when the sergeant read out that she put her hand under her seat and on the steering wheel that she actually had no weapon or no intention to actually drive off and that she also has no criminal record.  So therefore, she’s trying to say that she had no intention to deny cooperation with the police.

BENCH:  Yes.  Of course, it’s not suggested that she did other than what the police prosecutor read to me.  Yes.  Are there any other submissions she wishes to make?

INTERPRETER:  Your Honour, she just repeated again that she had no intention to actually lie or to refuse to cooperate with the police and she explained that when she needed to call her employer, it was because she was not aware that she had to give her name and her address and that was an offence and that she had to cooperate, however she just admitted that she just was not aware of the procedure and did not mean to intentionally disrupt the process.

BENCH:  Yes, thank you.”

  1. [52]
    It seems to me that the appellant’s affidavit material and the submissions provided clear evidence of her position “as to the facts” which qualified the purported plea, and cast significant doubt on the facts essential to the offences.
  1. [53]
    His Honour did not appreciate these matters at any stage of the proceeding or in his determination of the application to re-open. The affidavit material does not feature in the decision of the magistrate delivered on 16 November 2015. Even if it was open for the matter to proceed as a contested sentence, it is not clear how His Honour arrived at his findings of fact in circumstances where he either ignored or rejected the only sworn evidence of the contested facts being the affidavits of the appellant, which were neither challenged nor contradicted by the prosecutor. The prosecutor offered no sworn evidence but merely narrated the contended facts. In my view, by proceeding in the way he did, His Honour failed to take those material matters into consideration and mistook the facts as supporting the conviction and orders made on 9 March 2015.
  1. [54]
    Further, on a proper analysis, the facts and circumstances raised in the appellant’s affidavits cast significant doubt upon the commission of the offences of failing to stop; failing to give her correct name; and obstructing police. In R v GV,[19]the Court of Appeal (Jerrard JA, Jones and Atkinson JJ)quashed a conviction and ordered a retrial where, after a plea of guilty by the accused, the facts presented to the sentencing judge raised a complete defence to the charges.  In such circumstances, the trial judge should have exercised his discretion and directed that a plea of not guilty be entered.  The Court summarised the principles that apply to the setting aside of a plea as follows:[20]

“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.”

  1. [55]
    In all the circumstances, it seems to me that the magistrate ought to have formed a view that the plea of guilty was not genuine and then obtain an unequivocal plea of guilty. That course was not a matter of discretion. In any event in my view the purported plea “as to the facts” was incapable of supporting the facts relied upon to convict or to make the orders.

Mistake as to the nature of the charges

  1. [56]
    A further ground relied upon by the appellant was that the appellant was mistaken as to the nature of the charges.
  1. [57]
    It is often difficult for judicial officers to ensure the integrity of proceedings that involve a litigant appearing in person.  In these circumstances, the lack of legal knowledge is undoubtedly a misfortune for any lay litigant appearing in person, but it should not be seen as a privilege.[21] The High Court in Neil v Nott[22] said:

“A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy”.

  1. [58]
    The magistrate did endeavour to ascertain the appellant’s right, but he did so without regard to the affidavit material (despite being in the possession of the police well before the first mention). In her later affidavit filed in support of the application made pursuant to s 147A, the appellant explained her misunderstanding that she was facing only one charge for the offence of speeding.[23]Further, she deposes to her attempt to convey to the court on 19 January 2015 (and on subsequent occasions) her intention that she wished to plead guilty to the facts deposed to in her affidavit.  In my view the appellant’s mistaken understanding of the nature of the charges is evident when the proceedings and affidavits are properly considered.
  1. [59]
    It is unsurprising that the magistrate struggled to make “sense” of the appellant’s position by rejecting the affidavits and adhering to the view that the appellant had already entered a plea of guilty.
  1. [60]
    In those circumstances, it seems to me that the magistrate, ought to have considered all the relevant material and formed the view that the plea of guilty was infected by mistake as to the nature of the charges and not genuine.

Application to Re-Open

  1. [61]
    I have concluded that the pleas entered by the appellant on 19 January 2015 (and later maintained) were equivocal, vitiated by mistake as to the nature of the charges or a lack of comprehension of the character or significance of the pleas. In the result there was no factual basis established or supported by any plea to proceed to conviction and orders.
  1. [62]
    Therefore, His Honour was not permitted to proceed on the facts as he found them, and by doing so the convictions and orders where based on an “error of fact” within the meaning of s 147A of the Act.
  1. [63]
    The proceedings ought to be reopened, and having given the parties an opportunity of being heard, it is incumbent on this court to consider whether to set aside the convictions or vacate or vary the order in either case to conform with the facts.

Set Aside Plea

  1. [64]
    It seems to me that the following circumstances can be distilled from the authorities[24]as causing a miscarriage of justice in which the court would set aside a conviction following a plea:
  1. where the appellant did not appreciate the nature of the charge to which the plea was entered;
  1. where the plea was not a free and voluntary confession;
  1. where the plea was not really attributable to a genuine consciousness of guilt (unless entered in the exercise of a free choice in open court by a defendant of full age, sound mind and understanding);
  1. where there was a mistake or other circumstances affecting the integrity of the plea as an admission of guilt;
  1. where the plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty in circumstances which indicate that the plea of guilty was not really attributable to a genuine consciousness of guilt;
  1. where the plea of guilty is equivocal or made in circumstances suggesting that it is not a true admission of guilt;
  1. where the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt (again unless the plea was entered in the exercise of a free choice in open court by a defendant of full age, sound mind and understanding).
  1. [65]
    In my view the appellant’s pleas were a nullity by virtue of the failure to re-arraign in the presence of the interpreter in compliance with s 145(1) of the Act. Otherwise, they were not in plain, unambiguous and unmistakable terms, and ought be treated as a plea of not guilty. They were accompanied by a statement (supported by affidavits) indicating innocence, or at least qualifications which, if true, may show that the appellant is not guilty of the offences charged.
  1. [66]
    This is a proper case to exercise the power to prevent a miscarriage of justice. Accordingly, in those circumstances the conviction recorded should be quashed.[25]I will direct that a plea of not guilty should be entered, and will order the matter be returned to the Magistrates Court for hearing.  It is unfortunate that the appellant has endured so much for such low level offending (if sustainable at all) and any future proceedings warrant serious consideration.

Impounded Vehicle

  1. [67]
    The appellant also seeks an order that her vehicle be released from impoundment, and all fees currently due and owing on the vehicle be waived.
  1. [68]
    After hearing the appeal, I invited the parties to make further submissions on the court’s power to make such an order. I received submissions from the respondent.
  1. [69]
    The charge of failing to stop a motor vehicle is a type 1 vehicle-related offence against s 754(2) of the PPRA. On 29 December 2014 police exercised the discretion to impound the appellant’s vehicle for 90 days under s 74(1) and subsequently issued an impounding notice in accordance with s 78 of the PPRA.
  1. [70]
    When this matter first came before the Mareeba Magistrates Court on 19 January 2015, the appellant sought “an order immediately to return of my property” (being a reference to the impounded vehicle).  At the end of the hearing she again requested: “And I require an order immediately to return my property”; but the magistrate refused to address the issue saying:  “…Well, you’re not going to get one of those.  …Well, I’m not interested.  It’s got nothing to do with me.”
  1. [71]
    She then made an application to the Commissioner on 5 February 2015 for the early release of her impounded vehicle under s 79A of the PPRA. The grounds of the application were that:

“I have worked on basil farm outside of Mareeba for 5 months 3-4 days per week.  I live at Trinity Park, Cairns.  It take 45-50 minutes to get there (no bus service to my work).  I always ring my husband to let him know I get there Ok.  There is no public transport it makes it extremely hard to get to work without my own transport.  I have only works for 2 days since my car has been taken. …

We are a 2 car family, my husband needs his car for his business.  I need my own transport and now I am unable to go to work.  I might loose my job which will effect my living.  I love my job and I miss it.”

  1. [72]
    The grounds were cogent, but the Commissioner’s delegate rejected the application on 18 February 2015 on the basis that there was insufficient evidence of the grounds asserted by the appellant. The application would have been further strengthened if the appellant had relied upon facts and circumstances adduced in her affidavits lodged with the respondent and relied upon in the Magistrates Court and in this appeal. This is quite apart from my view that the low level nature of the offending here (if sustainable at all) and impoundment process was never intended to operate this way.
  1. [73]
    The appellant was entitled to, but has not, appealed from the decision. The appellant was otherwise entitled to claim the vehicle at the expiry of the 90 days of impoundment upon payment of the Impounding Fees which at that date were about $2,250.00. The appellant is liable to pay those costs, which are mounting at the rate of $25.36 per day, while the vehicle remains unclaimed. Of course, if the offence of failing to stop ultimately fails, the appellant will be relieved of the fee.
  1. [74]
    If I had the power to do so, I would not have hesitated to make the orders sought by the appellant. But I regret to conclude that I have no power to deal with the impoundment or to waive the fee.

Conclusions and Orders

  1. [75]
    Therefore, I make the following orders:
  1. The appeal is allowed.
  1. The application to re-open proceedings pursuant to s 147A of the Justices Act 1886 is allowed, and the orders made on 16 November 2015 are set aside.
  1. The convictions and orders made on 9 March 2015 are set aside.
  1. I direct that pleas of not guilty be entered in respect of all four charges against the appellant.
  1. The proceeding in respect of the complaint and summons is remitted to the Magistrates Court Mareeba Registry for rehearing (including re-arraignment) before a different magistrate in due course.
  1. [76]
    I will hear the parties in relation to costs, including any order for a just amount exceeding that assessed under the scale in Schedule 2 of the Justices Regulation 2014 (Qld).

Judge D. P. Morzone QC

Footnotes

[1]  Cited in R v Mundraby [2004] QCA 493 by Jerrard JA at [21] and McPherson JA at [14].

[2]  Decision at [39]

[3]  Decision at [21]

[4] R v Tommerkand (unreported, CA No 233 of 1994) at p 7, citing R v Williams ex parte Biggs [1989] 1 Qd R 594

[5] R v Tommerkand (unreported, CA No 233 of 1994) at pp 2 & 7

[6] R v Tommerkand (unreported, CA No 233 of 1994) at p 7, citing Boyd v Sandercock ex parte Sandercock [1990] 2 Qd R 26; R v DC (1999) QCA 486 per Williams J at [47], [48] & [55]

[7] Maxwell v The Queen (1996) 184 CLR 501 pages 510 to 511, Dawson and McHugh JJ.  See also Di Camillo v Wilcox [1964]WAR 44; Slater v Marshall [1965] WAR 222

[8] Maxwell v The Queen (1996) 184 CLR 501 pages 510 to 511, Dawson and McHugh JJ

[9]   T1-7/30  T1-9/6

[10]  Decision p. 2 lines 1 - 7

[11]  T1-2/6 & 1-3/43

[12]  T1-2/39-42

[13]  T1-3/29-35

[14]  T1-2/39-42

[15]  see T1-3/40 – T1-4/8; T1-4/33-T1-5/6; T1-5/8-24; T1-5/26-31; T1-5/34-45); T1-6/1-6; T1-6/18-33

[16]  Affidavit filed 12 October 2015 paras 5, 6 and 11.

[17]  Affidavit filed 12 October 2015 para 11

[18]  T1/10/25  T1-11/6

[19] R v GV [2006] QCA 394.

[20] R v GV [2006] QCA 394 at [40] cited in R v Shipley [2014] QSC 299 at [74] where McMeekan J considered the analogous construction and application of s 600(4) of the Criminal Code (Qld).

[21] Gallo v Dawson (1990) 93 ALR 479 at [481] per McHugh J

[22] Neil v Nott (1994) 121 ALR 148 at [150] per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[23]  Affidavit filed 12 October 2015 para 4

[24] R v Hura (2001) 121 A Crim R 472 at 478 as discussed by Jerrard JA in R v Mundraby [2004] QCA 493 at [22] – [23].

[25]  See R v The Justices at Cloncurry; Ex parte Ryan [1978] Qd R 213. See also R v Murphy (1979) 1 A Crim R 398,

Close

Editorial Notes

  • Published Case Name:

    Thammaruknon v Queensland Police Service

  • Shortened Case Name:

    Thammaruknon v Queensland Police Service

  • MNC:

    [2016] QDC 31

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    26 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Boyd v Sandercock; ex parte Sandercock[1990] 2 Qd R 26; [1989] QSCFC 124
3 citations
Jump To
Cite 1 - [1990] 2 Qd R 26
Cite 2 - [1990] 2 Qd R 26
Cite 3 - [1990] 2 Qd R 26
Di Camillo v Wilcox (1964) WAR 44
2 citations
Jump To
Cite 1 - (1964) WAR 44
Cite 2 - (1964) WAR 44
Gallo v Dawson (1990) 93 ALR 479
2 citations
Jump To
Cite 1 - (1990) 93 ALR 479
Cite 2 - (1990) 93 ALR 479
Libert (1991) 55 A Crim R 120
2 citations
Jump To
Cite 1 - (1991) 55 A Crim R 120
Cite 2 - (1991) 55 A Crim R 120
Maxwell v The Queen (1996) 184 CLR 501
4 citations
Jump To
Cite 1 - (1996) 184 CLR 501
Cite 2 - (1996) 184 CLR 501
Cite 3 - (1996) 184 CLR 501
Cite 4 - (1996) 184 CLR 501
Maxwell v The Queen (1996) 184 CLR 50
1 citation
Jump To
Cite 1 - (1996) 184 CLR 50
Meissner v The Queen (1995) 184 CLR 132
3 citations
Jump To
Cite 1 - (1995) 184 CLR 132
Cite 2 - (1995) 184 CLR 132
Cite 3 - (1995) 184 CLR 132
Neil v Nott (1994) 121 ALR 148
2 citations
Jump To
Cite 1 - (1994) 121 ALR 148
Cite 2 - (1994) 121 ALR 148
R v GV [2006] QCA 394
3 citations
Jump To
Cite 1 - [2006] QCA 394
Cite 2 - [2006] QCA 394
Cite 3 - [2006] QCA 394
R v Hura (2001) 121 A Crim R 472
2 citations
Jump To
Cite 1 - (2001) 121 A Crim R 472
Cite 2 - (2001) 121 A Crim R 472
R v Justices at Cloncurry; ex parte Ryan [1978] Qd R 213
2 citations
Jump To
Cite 1 - [1978] Qd R 213
Cite 2 - [1978] Qd R 213
R v Mundraby [2004] QCA 493
4 citations
Jump To
Cite 1 - [2004] QCA 493
Cite 2 - [2004] QCA 493
Cite 3 - [2004] QCA 493
Cite 4 - [2004] QCA 493
R v Murphy (1979) 1 A Crim R 398
2 citations
Jump To
Cite 1 - (1979) 1 A Crim R 398
Cite 2 - (1979) 1 A Crim R 398
R v Shipley [2014] QSC 299
2 citations
Jump To
Cite 1 - [2014] QSC 299
Cite 2 - [2014] QSC 299
R v Williams; ex parte Biggs [1989] 1 Qd R 594
3 citations
Jump To
Cite 1 - [1989] 1 Qd R 594
Cite 2 - [1989] 1 Qd R 594
Cite 3 - [1989] 1 Qd R 594
Slater v Marshall [1965] WAR 222
2 citations
Jump To
Cite 1 - [1965] WAR 222
Cite 2 - [1965] WAR 222
The Queen v DC [1999] QCA 486
3 citations
Jump To
Cite 1 - [1999] QCA 486
Cite 2 - [1999] QCA 486
Cite 3 - [1999] QCA 486

Cases Citing

Case NameFull CitationFrequency
Corbin v State of Queensland [2019] QSC 1101 citation
1

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