Selvaraja v Queensland Police Service
[2022] QDC 94
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- Unreported Judgment
- Selvaraja v Queensland Police Service[2022] QDC 94
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Selvaraja v Queensland Police Service[2022] QDC 94
Selvaraja v Queensland Police Service[2022] QDC 94
DISTRICT COURT OF QUEENSLAND
CITATION: | Selvaraja v Queensland Police Service [2022] QDC 94 |
PARTIES: | SENTHURAN SELVARAJA (applicant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | BD 3081/21 |
DIVISION: | Crime |
PROCEEDING: | Appeal - Justices Act 1886 (Qld) s 222 |
ORIGINATING COURT: | Magistrates Court of Queensland at Brisbane |
DELIVERED ON: | 29 April 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 April 2022 |
JUDGE: | Loury QC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – s 222 of the Justices Act 1886 (Qld) – whether applicant entered pleas of guilty at Magistrates Court – whether the requirements of s 145 of the Justices Act 1886 (Qld) were complied with – where applicant’s first language is Tamil – where there was confusion as to the total number of charges – where applicant’s solicitor indicated on the applicant’s behalf that the applicant will plead guilty to all 30 charges – whether the conduct of the sentencing proceedings makes it unclear whether the applicant unequivocally entered pleas of guilty |
LEGISLATION: | Justices Act 1886 (Qld) s 145, s 222(2)(c) |
CASES: | Ajax v Bird [2010] QCA 2 Commissioner of Police Service v Magistrate Spencer and Ors [2013] QSC 202 Long v Spivey [2004] QCA 118 Meissner v The Queen (1995) 184 CLR 132 Munday v Gill (1930) 44 CLR 38 Todhunter v Zacka; ex parte Zacka [1965] Qd R 515 |
COUNSEL: | B Power QC for the applicant T Corsbie for the respondent |
SOLICITORS: | Robertson O'Gorman Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent |
- [1]On 26 February 2021 the applicant, for an extension of time within which to appeal his convictions, was taken to have pleaded guilty and was sentenced on each of 30 offences of fraud, to two years imprisonment suspended after serving three months for two years.
- [2]The ground of the applicant’s proposed appeal is that no pleas of guilty were entered and none of the requirements of s 145 of the Justices Act 1886 (Qld) were complied with. The application for the extension of time was filed on 26 November 2021, a delay of eight months beyond the statutory period in which to file a notice of appeal. Whether an extension of time will be granted depends principally upon the merit of the applicant’s appeal. He has provided an explanation for the delay in his having filed his appeal. That explanation is based on his lack of understanding of English given that his first language is Tamil and his having been taken into immigration detention after serving his sentence.
- [3]Section 222(2)(c) provides that if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.
- [4]
“In order to have a right to appeal pursuant to s 222, the respondent was required to prove either that his appeal in respect of the charge...was only on the ground that the punishment was excessive; or that he had not pleaded guilty or admitted to the truth of the complaint.”
- [5]
“Other decisions cited by the applicant illustrate the point that s 222(2)(c) may not preclude an appeal to the District Court where the applicant’s plea was equivocal or, upon analysis amounted to a plea of not guilty or where the applicant had entered a plea of guilty to a charge ‘that clearly did not exist at law” (Citations omitted)
- [6]The applicant’s principal contention is that no plea was taken at all to any of the 30 charges; that this is an irregularity which, in the circumstances of this case, is so serious that the convictions ought to be set aside.
- [7]The applicant was represented by an experienced criminal defence solicitor in the Magistrates Court. At the commencement of the hearing the applicant’s solicitor announced his appearance indicating that he appeared for the applicant who he indicated “will plead guilty to all charges”. What then transpired was a reasonably lengthy discussion between the learned Magistrate, the applicant’s solicitor and the police prosecutor as to the number of charges before the court. The learned Magistrate referred initially to there being 17 charges, the applicant’s solicitor to there being 28 charges, and the police prosecutor to there being 29 charges. The sentencing schedule relied upon by the prosecution appeared to contain 29 charges when it in fact contained 30 charges due to the duplication of two charge numbers. Eventually the learned Magistrate indicated that there were 30 charges before her. There was no demurrer from either the applicant’s solicitor or the police prosecutor. The learned Magistrate then proceeded to mark the exhibits being the schedule of facts and compensation schedule. She then heard submissions from the police prosecutor and the applicant’s solicitor before passing sentence.
- [8]I infer from the experienced solicitor’s statement that the applicant “will plead guilty to all charges” that he anticipated, in accordance with s 145 of the Justices Act 1886 (Qld), that the applicant would be called upon to enter a plea of guilty. Section 145 of the Justices Act 1886 (Qld), as amended, provides:
- (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 is legally represented and there is more than 1 complaint before the Magistrates Court, a plea to any number of the complaints may, with the consent of the defendant, be taken at the same time on the basis that the plea to 1 complaint will be treated as a plea to any number of the complaints if the court is satisfied—
- the defendant has obtained legal advice in relation to each of the complaints; and
- the defendant is aware of the substance of each of the complaints.
- (3)If the Magistrates Court takes a plea under subsection (2), the court is not required to state the substance of any complaint before the court to the defendant.
- (4)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
- [9]It is contended for the applicant that not only were the requirements of s 145 ignored, there was no plea of guilty taken at all and no indication from the applicant’s solicitor that the applicant was entering pleas of guilty.
- [10]The exchange between the applicant’s solicitor, the learned Magistrate and the police prosecutor demonstrates that there was some confusion as to the number of charges that the applicant was facing. The applicant’s solicitor has sworn an affidavit which annexes the applicant’s instructions. Those instructions indicate that the applicant understood that he had been charged with 27 counts of fraud. Those instructions were signed on 11 February 2020 approximately one week prior to the original listing of a summary trial. Correspondence sent by the applicant’s solicitor to the applicant on 14 September 2020 suggests that there were 25 charges of fraud for which the applicant had provided instructions. On 26 February 2021 (the day of the sentence hearing) the applicant again provided instructions which indicated that he was pleading guilty to 28 charges of fraud. This is consistent with the number of charges that the applicant’s solicitor informed the Magistrate that he was aware of. This reference in the instructions to 28 charges has been amended by hand to 30 and appears to have been initialled by the applicant’s solicitor. I would infer that this amendment occurred after the discussion was had with the learned Magistrate as to the number of charges.
- [11]Section 145 of the Justices Act 1886 (Qld) was comprehensively considered by Henry J in Commissioner of Police Service v Magistrate Spencer and Ors.[5] At the time of that decision subsections (2) and (3) had not been enacted. The section was otherwise in the same terms as it is now. In accordance with long standing authority[6] Henry J said that failure to comply with s 145 of the Justices Act 1886 (Qld) is not automatically fatal to the validity of the ensuing proceedings but the consequences of non-compliance will vary according to the circumstances of the case. He referred to the reasoning of the High Court in Munday v Gill[7] (which was adopted in Todhunter v Zacka; ex parte Zacka) where Gavan Duffy and Starke JJ observed:
“No definite principle can be extracted from these cases. In some instances, the irregularity is so serious that the consent of the accused will not cure it; in others, consent overcomes the irregularity; whilst in yet others, it is very slight and unattended by any serious consequence to the accused, so that no substantial miscarriage of justice takes place and the Courts refuse to interfere. Much must therefore depend upon the nature of the charge, the character of the irregularity, and the conduct of the parties at the hearing. The fact that the accused person has consented to the irregular procedure is weighty, and one that is often decisive; but it is not conclusive of itself and the Court must consider the whole of the circumstances.”
- [12]Henry J went on to observe that the risk of waving compliance with s 145 is “not that the non-compliance will of itself negate the outcome of the proceeding but that it will obscure some other feature that will.”[8]
- [13]Section 145 was amended in 2017 to include subsections (2) and (3) which provide for a procedure which can be used if a defendant is legally represented; has obtained legal advice in relation to each of the complaints; is aware of the substance of each of the complaints; and consents to pleading in bulk to any number of complaints. Whilst the court is not required to state the substance of any complaint to the defendant the procedure which is required to be undertaken is designed to eliminate the risk of any misunderstanding on the part of the defendant as to the number and nature of the charges. The procedure still requires the defendant to be asked how he/she pleads and does not provide for the plea to be entered by his/her legal representative.
- [14]The applicant has filed an affidavit in which he swears that he came to Australia as a refugee from Sri Lanka in 2012; that he had formal lessons in English for only four months and that he now has only a limited understanding of the English language. He states that he thought he was pleading guilty to seven charges only; and that he did not understand anything that occurred during the sentence hearing because of his limited understanding of the English language.
- [15]The applicant has also alleged that the instructions he gave his solicitor on two occasions were induced by some impropriety on the part of his solicitor. He has sworn that he instructed his solicitor that he wanted to plead guilty to only seven charges, that he asked his solicitor for an interpreter for the sentence and that his solicitor refused to ask the court for one to be provided. He further alleges that with respect to the instructions he signed to plead guilty, he did not understand them and they were not read or explained to him by his solicitor. He further alleges that his solicitor told him that he would likely be fined for his offending.
- [16]The applicant and the respondent have each filed affidavits focused on the ability of the applicant to understand English. The applicant’s solicitor at the sentence hearing and the investigating police officer have each affirmed their ability to communicate with the applicant without the need for an interpreter. The applicant’s solicitor has denied the allegations of impropriety alleged against him and has exhibited instructions and correspondence which support his account.
- [17]The applicant’s now-immigration solicitor was engaged by the applicant in September 2020 on a judicial review of a decision of the Immigration Assessment Authority to refuse the applicant and his family a protection visa. During the course of this representation, the applicant sought assistance from his immigration solicitor in relation to his criminal convictions. This solicitor has sworn an affidavit in which he states that it was extraordinarily difficult to communicate with the applicant about the criminal matters without the aid of an interpreter.
- [18]The material the applicant has filed suggests that he lacked an understanding of the substance of the charges he was facing and lacked the intention to plead guilty to all of them. Whilst there is a dispute as between the respondent and applicant as to the extent of his understanding of the English language, given the confusion at the sentence hearing as to the number of charges before the court, there exists in my mind a possibility that the applicant has been wrongly convicted. Despite that he was legally represented by a competent and experienced solicitor at the sentence hearing, the confusion as to the number of charges and the confusion which arose from the statement of facts as to the substance of those charges, means that whilst the applicant’s legal representative by inference, waived compliance with section 145, that non-compliance has obscured the ability to determine whether the pleas indicated were equivocal.
- [19]There are three well recognised circumstances in which a plea of guilty will be set aside on appeal. Firstly, if the applicant did not understand the nature of the charge and did not intend to admit guilt. Secondly, if the applicant could not, in law have been guilty. Thirdly where the guilty plea was obtained by improper inducement, fraud or intimidation.[9]
- [20]The failure to comply with s 145 of the Justices Act 1886 (Qld) has obscured, in my view, a proper consideration of whether the applicant entered unequivocal pleas of guilty to the 30 charges of fraud.
- [21]The irregularity in this case has resulted in serious consequences to the applicant in terms of his serving a sentence of actual imprisonment and the cancellation of his bridging visa. The irregularity means that, in the circumstances of this case, the learned Magistrate lacked jurisdiction to sentence the applicant.
- [22]My orders are:
- Extend time within which to appeal against conviction to 26 November 2021;
- The appeal is allowed;
- The convictions are set aside;
- The matter is remitted to the Magistrates Court to be dealt with according to law.
Footnotes
[1] [2004] QCA 118 [23].
[2] [2010] QCA 2.
[3] [2005] QCA 150.
[4] [2005] QCA 317.
[5] [2013] QSC 202.
[6] Todhunter v Zacka; ex parte Zacka [1965] Qd R 515.
[7] (1930) 44 CLR 38, 80-81.
[8] Commissioner of Police Service v Magistrate Spencer and Ors at [54].
[9] Meissner v The Queen (1995) 184 CLR 132.