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TLB v Queensland Police Service QDC 128
DISTRICT COURT OF QUEENSLAND
TLB v Queensland Police Service  QDC 128
QUEENSLAND POLICE SERVICE
Magistrates Court, Cairns
31 July 2019
30 July 2019
CRIMINAL LAW – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where appellant pleaded guilty to charges of breach of bail, unlawful stalking, commit public nuisance and unlawful possession of a knife in a public place – where the appellant appeals the conviction pursuant to s 222 Justices Act 1886 – where the appellant applies to withdraw his pleas of guilty – whether the appellant’s pleas should be set aside and the convictions quashed in the interests of justice
Justices Act 1886 (Qld) s 147A(2), s 222
Ajax v Bird  QCA 2
Commissioner of Police v James  QCA 403
Dore & Ors v Penny  QCA 150
R v Hennessy; Hennessy v Vojvodic  QCA 345
R v Liberti (1991) 55 A Crim R 120
Long v Spivey  QCA 118
Maxwell v R (1996) 184 CLR 501
Meissner v The Queen (1995) 184 CLR 132
Phillips v Spencer  2 Qd R 47
R v Verrall  1 Qd R 587
R v Wade  Qd R 31
The appellant appeared on his own behalf
The Office of the Director of Public Prosecutions for the respondent (T Papadimitriou)
Proceeding the subject of the appeal
- On 4 April 2019 the appellant pleaded guilty in the Cairns Magistrates Court to the following charges:
- Commit public nuisance pursuant to section 6(1) of the Summary Offences Act 2005;
- Possession of a knife in a public place pursuant to section 51(1) of the Weapons Act 1990;
- Breach of bail condition pursuant to section 29(1) of the Bail Act 1980; and
- Unlawful stalking pursuant to section 359E(1) of the Criminal Code.
- He was sentenced on all charges to 18 months probation, convictions were recorded and a forfeiture order was made for the knife. A restraining order was made for a period of 12 months. It included conditions that the appellant not attend or remain in a shopping centre, not approach or have contact with the complainant on the stalking charge and not contact her on social media.
- The appellant was self represented on appeal.
- He filed a Notice of Appeal pursuant to section 222 of the Justices Act 1886. The sole ground of appeal stated “Crimes Act 1914, SECT 41. False accusations, all evidence is false accusations.” This was expanded upon in a further paragraph.
- The appellant conducted his own appeal. He gave sworn evidence on appeal. The Crown elected not to cross examine him.
- He made an oral application to withdraw his pleas of guilty.
- He filed two outlines of argument in which he made a number of submissions, including the following. He had a reasonable excuse for possessing a knife in a public place. He was not guilty of the charges of possessing a knife in a public place, public nuisance or stalking. He was charged on the basis of false accusations. He alleged police corruption, perversion of the course of justice, conspiracy between the Queensland Police Service and the Magistrates Courts, bribery, and conspiracy between the Cairns Hinterland Health Service and the Queensland Police Service regarding surgery for his medical condition. He referred to historical rebellions and human trafficking. He said he had been forced into state imposed forced labour. He said that people were following him. He referred to his involvement in major drug seizures and an incident in which he had saved aircraft passengers from a terrorist attack.
- I also had before me on the appeal the transcript of the sentencing hearing, the Magistrate’s sentencing remarks, the Magistrate’s Court file and a Mental Health Assessment Court Liaison Service Report dated 2 April 2019.
- The Crown submitted that the appeal was invalid on the basis that section 222(2)(c) of the Justices Act 1886 (Qld) precludes an appeal against conviction after an unequivocal plea of guilty was entered, and that the appellant’s plea was unequivocal.
- In support of that submission, it pointed out that:
- The appellant was legally represented at sentence;
- When asked by the Magistrate if he entered the pleas of guilty of his own free will, he said, “Yes”;
- When asked by the Magistrate if anyone had exerted any pressure or influence on him to plead guilty, the appellant said, “No”;
- The appellant’s lawyer made submissions on his behalf; and
- When imposing the sentence, the learned Magistrate asked the appellant a number of times if he understood the sentence and the restraining order and the appellant said, “Yes”.
- An alternative remedy may have been an application to the Magistrates Court to set aside the pleas of guilty within 28 days after conviction or within such further time as that court allows. When asked whether he had made such an application, the appellant said that there was “no point” going back to the Magistrates Court, and that he had filed this appeal instead.
- The issues on appeal are whether the pleas of guilty were unequivocal and whether it is in the interests of justice to set them aside on one or more bases, including whether the appellant had an arguable defence to the charges (on the basis of unsoundness of mind or otherwise) and whether he was fit to plead at the time of entry of his pleas.
- Under the Justices Act 1886, a defendant who pleads not guilty and is convicted after a summary trial has a right of appeal against conviction under section 222(1). But a defendant who “pleads guilty or admits the truth of a complaint” within the meaning of section 222(2)(c) has no right of appeal against conviction.
- The Court of Appeal has stated that where a defendant enters an unequivocal plea of guilty, that person has no right of appeal against conviction under section 222.
- This court has jurisdiction on the appeal to consider whether the plea was an unequivocal plea of guilty. In R v Hennessy the Court of Appeal set aside pleas of guilty on the basis that the appellant had entered the pleas without a proper understanding of what was entailed in the plea, so far as acknowledgment of criminal responsibility was concerned, and where he had available to him a defence of unsoundness of mind and may not have been fit to plead.
- An appeal may be authorised pursuant to section 222(1) on the footing that an equivocal plea of guilty should not be regarded as a plea of guilty or an admission of the kind referred to in section 222(2)(c).
- A plea of guilty must be unequivocal and not made in circumstances suggesting 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 the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea 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.
- A grant of leave to withdraw a plea involves a consideration of the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law, inability to obtain legal representation or if the interests of justice otherwise require.
- In general terms “the power to reject a plea is a power which is exercised where the plea is equivocal or does not constitute a confession of guilt (for example, if it is accompanied by a statement which indicates that the accused denies or does not admit some element of the offence charged) or, for some other reason, there are grounds for thinking that the accused is not criminally responsible for the offence to which he or she has pleaded guilty”.
- A miscarriage of justice may be established in circumstances in which, for example: in pleading guilty, the accused did not appreciate the nature of the charges or did not intend to admit guilt; or the plea was not made freely and voluntarily, such as where it is shown that the plea was “not really attributable to a genuine consciousness of guilt”. And it will normally be impossible to show a miscarriage of justice unless an arguable case or triable issue is also established.
- In Meissner v The Queen, Brennan, Toohey and McHugh JJ said:
“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. … 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.” [citations omitted]
- Dawson J said:
“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.” [citations omitted]
- In R v Liberti, Kirby P said:
“For good reasons, courts approach attempts at trial or an 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.” [citations omitted]
- A miscarriage of justice may arise where an accused pleaded guilty without appreciating that he had an arguable defence to the charge against him.
Circumstances of the alleged offending
- The appellant was a 31 year old man. He was an electrician by trade, with a good work history. At the time of sentence he was unable to work and on a benefit because he had a hernia. He had a minor criminal history that included previous convictions for public nuisance offences committed in 2006, 2005 and 2013. No convictions had been recorded.
- On 19 March 2019 the appellant was charged with public nuisance and possession of a knife in a public place. It was alleged that he was involved in an argument with a man at a shopping centre, and when spoken to by police, was found in possession of a knife. A shop owner informed police that the appellant had been attending his business and appeared to have become infatuated with the owner’s wife, who worked there. She did not know the appellant. The appellant went to the shop every day for several days. He bought coffee and asked for her telephone number. He tried to engage her in conversation. He sent her two unsolicited messages on social media. She felt threatened by him. When spoken to by police, the appellant said that he knew the woman, and referred to her being a victim of human trafficking.
- He was granted bail with conditions that he not attend the shopping centre and was required to appear on 4 April 2019.
- On 2 April 2019 he was charged with a breach of bail and remanded in custody in the watchhouse. The police bail affidavit alleged that he had breached that bail condition on 1 April 2019 by continuing to attend the shopping centre, circling the complainant’s place of work, staring at her and refusing to leave when requested. The appellant told police he was a free man and could do as he pleased. He told them that he believed that a human trafficking network was operating at the location and he wanted to gather information to support this belief. He appeared fixated on the shopping centre. Employees of business had expressed concern about his presence. He had been flagged in the police database on the basis that he believed that he was being watched by various organisations.
Circumstances in which the pleas were entered
- On 2 April 2019 the appellant appeared and was represented by a duty lawyer. The Magistrate referred him for a mental health assessment.
- The same day, 2 April 2019, a Clinical Nurse Consultant Court Liaison Officer provided a Mental Health Assessment Court Liaison Service Report. The report states that the appellant “appears to have a mental health condition that requires further assessment or intervention”. The report recorded that the appellant was seen in the watchhouse that morning as part of a routine triage. He was deemed fit to attend Court, but if granted bail would receive an involuntary assessment under the Mental Health Act 2016 at the Cairns hospital. If remanded, he would be referred to the Prison Mental Health Service. In the comments section, it stated: “There are some concerns Court Liaison staff have around some of the details of his offending, that may relate to an undiagnosed mental health condition.” [emphasis added]
- The appellant’s bail was revoked and he was remanded in custody again in the watch house. The Magistrates Court file records that the report gave rise to concerns that the appellant’s risks of reoffending could not be reduced until his mental health function was clarified or treated.
- The next morning, 3 April 2019, the appellant appeared again in the Magistrates Court. He was not legally represented. He was charged with unlawful stalking. It was alleged that between 12 and 19 March 2019 he had stalked the complainant in the shop. The matter was listed for mention at 9:30am the following day, 4 April 2019. He was remanded in custody again in the watchhouse.
- The appellant gave evidence that at some point he was advised by a duty lawyer that if he pleaded guilty to the charges he would be released, but if he pleaded not guilty he may go to prison. He said that the day before he was sentenced, he told the Magistrate that he wanted to bring all the charges on, that he wanted a lawyer and he wanted to plead guilty.
- On the morning of 4 April 2019, the appellant saw a different duty lawyer who appeared on his sentence. It was the first time he had seen that lawyer. He told the lawyer that he was not guilty of the charges because the evidence was fabricated and the accusations were false. He was advised that if he pleaded not guilty it was possible he would stay in custody. He did not tell the duty lawyer about the mental health assessment while he was in the watchhouse. He says he did not tell the duty lawyer about any mental health issues or his concerns regarding human trafficking, conspiracies, corruption or that people were following him.
- There is no evidence that the duty lawyer was aware of those matters.
- The appellant gave evidence that he pleaded guilty because he was worried that if he did not, he would be remanded in custody again and sent to prison. He had, by then, spent some days in the watchhouse. He has a serious medical condition, an incarcerated hernia, which causes him severe pain. He was awaiting surgery for it. As a result, he felt he was not fit to go to prison. He is scheduled to have surgery for the hernia on 7 August 2019.
- Immediately after seeing the duty lawyer, on 4 April 2019 the appellant pleaded guilty and was sentenced. In the transcript of the sentencing hearing and in the Magistrate’s sentencing remarks, there is no reference at all to the Mental Health Assessment Court Liaison Service Report, or to the appellant’s mental health condition. No pre-sentence report was sought, or ordered.
- The day after the appellant was sentenced, he reported to probation and parole. He was immediately admitted as an involuntary patient to the mental health unit of the Cairns hospital for a mental health assessment. He cannot recall exactly how long he was admitted but believes it was two days.
- He says that while in the unit, he was not diagnosed with a mental health condition, that he is not currently on a treatment order and that he does not take medication for a mental health condition.
- About a week after discharge, he reported to community mental health and spoke to someone there, but he was unable to provide any further details about that.
- He did not have any medical records in his possession relating to that admission or to any mental health assessment.
Whether it is in the interests of justice that the appellant should be permitted to withdraw his pleas of guilty
- In the absence of psychiatric evidence, it is not possible for me to make a finding that the appellant had a well-founded defence of unsoundness of mind or that he was unfit to plead.
- However the evidence is sufficient to raise the real possibility that the appellant may have been suffering from an undiagnosed, untreated, mental health condition and delusions, both at the time of the alleged offending and when he entered his pleas of guilty, and that he does not have insight into that condition.
- I cannot be satisfied that he was apparently of sound mind and understanding at that time, and that his pleas were entered in the exercise of a free choice in his interests. Nor am I satisfied they were a free and voluntary confession attributable to a genuine consciousness of guilt.
- Accordingly, a miscarriage of justice has occurred and the appellant should be permitted to withdraw his guilty pleas. His convictions should be quashed and the sentences set aside.
- In addition, there is a separate basis on which he should be permitted to withdraw his plea to one of the charges.
- There is evidence that raises an arguable defence to the charge of possession of a knife in a public place.
- The appellant was charged under section 51(1) of the Weapons Act 1990, which provides, relevantly, that a person must not physically possess a knife in a public place, unless the person has a reasonable excuse.
- Pursuant to section 51(2), it is a reasonable excuse for subsection (1) to physically possess a knife:
- (a)to perform a lawful activity, duty or employment; or
- (d)for use for a lawful purpose.
- Below that subsection are a number of examples. The example given for subsection (2)(a) is that a person may carry a knife on his or her belt for performing work in primary production. An example given for subsection (2)(d) is that a person may carry a pen knife or swiss army knife for use for its normal utility purposes.
- Section 51(6) provides that “In deciding what is a reasonable excuse for subsection (1), regard may be had, among other things, to whether the way the knife is held in possession, or when and where it is held in possession, would cause a reasonable person concern that he or she, or someone else in the vicinity may be threatened or harmed”.
- During the sentencing hearing:
- the police prosecutor said that when police asked the appellant if he had a reason for possessing the knife, he told them he had it for work purposes. He said he was carrying it because he was an electrician. He could not provide a work location, saying he was a contractor.
- The appellant’s solicitor confirmed that the appellant was an electrician and had been in steady employment in his trade. He said he was not working at that time due to his medical condition (a hernia).
- There was no reference during the hearing to the fact that the appellant’s possession of a utility knife for his employment or general purposes may give rise to an arguable defence under section 51(2).
- In his outline of argument, the appellant submitted that he had a reasonable excuse to possess the knife. He said that the knife was a retractable utility knife, he used it for work as well as arts and crafts, and it had been closed and secured in his workbag that day.
- On appeal, the appellant gave evidence that the knife was a retractable or foldable utility knife or Stanley knife. He used it for work as an electrician, to cut insulation on wiring. He also used it for arts and crafts because he restored furniture. It was closed and secured, and carried in a bag. He was not brandishing, carrying or holding it in any way. Police removed it from his bag.
- There is no evidence that any person (other than the appellant and the police) was aware of the knife’s existence.
- There was no evidence that it would cause a reasonable person concern that they may be threatened or harmed.
- The evidence raises an arguable defence to the charge of possessing a knife in a public place. The appellant did not receive advice from the duty lawyer that he had a defence to the charge.
- The defendant pleaded guilty without appreciating that he had an arguable defence to the charge. That gives rise to a miscarriage of justice sufficient to set aside that plea.
Conclusion and orders
- It is in the interests of justice that the appellant be granted leave to vacate his earlier pleas of guilty to avoid a miscarriage of justice.
- The appeal should be allowed.
- Leave is granted to withdraw the pleas of guilty to all charges.
- The convictions are quashed and the sentences set aside.
- The proceeding should be remitted to the Magistrates Court for rehearing. There is no suggestion that the Magistrate acted inappropriately. Nonetheless if the matter proceeds to trial it is appropriate that it be heard by a different Magistrate.
- One unfortunate consequence of these orders is that if the Crown prosecutes the charges again in the Magistrates Court, it may result in a referral to the Mental Health Court, resulting in a very long delay. I recommend that the Crown give consideration to whether it is in the public interest to continue the prosecution.
 The name of the appellant has been anonymised because it is in the interests of justice to do so, in the light of the references to his medical records and medical conditions.
 Justices Act 1886 (Qld) section 147A(2).
 Commissioner of Police v James  QCA 403 at ; Ajax v Bird  QCA 2 at ; Long v Spivey  QCA 118; Dore & Ors v Penny  QCA 150 and Phillips v Spencer  2 Qd R 47.
 R v Hennessy; Hennessy v Vojvodic  QCA 345.
 James at .
 Maxwell v R (1996) 184 CLR 501 at 511 (per Dawson and McHugh JJ).
 Maxwell at 531 (per Gaudron and Gummow JJ).
 Maxwell at 531 (per Gaudron and Gummow JJ).
 R v Wade  Qd R 31 at  per Muir J; R v Verrall  1 Qd R 587 at  per Holmes JA.
 (1995) 184 CLR 132 at 141.
 Meissner at 157.
 (1991) 55 A Crim R 120 at 122.
- Published Case Name:
TLB v Queensland Police Service
- Shortened Case Name:
TLB v Queensland Police Service
 QDC 128
31 Jul 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||Magistrates Court (No Citation)||04 Apr 2019||Appeal convicted on his own pleas of guilty of: committing public nuisance; possession of a knife in a public place; breach of a bail condition and unlawful stalking.|
|Primary Judgment|| QDC 128||31 Jul 2019||Appeal against convictions allowed; set aside pleas of guilty; convictions quashed and sentences set aside; proceedings remitted to the Magistrates Court to be heard before a different Magistrate: Fantin DCJ.|
|Notice of Appeal Filed||File Number: CA215/19||21 Aug 2019||-|
|Appeal Discontinued (QCA)||File Number: CA215/19||19 Mar 2020||Appeal abandoned.|