The Queen v RC[2015] QMC 4

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   This is an application by the defendant applicant to set aside a plea of guilty to two charges of assault occasioning bodily harm that he allegedly committed on 22 February 2014.

2. [2]
   When the matter came on for hearing on 24 March 2015 I indicated to the parties that I would allow the application and publish my reasons at a later date. Those reasons are set out below.

3. [3]
   I was the Magistrate who took the pleas of guilty from the defendant who, at the date of the alleged offences, was a juvenile born on 4 February 1998.

4. [4]
   The pleas of guilty were entered on 26 August 2014 when the matters were to come on for trial.

5. [5]
   Mr Laing of Counsel has provided a written submission.

6. [6]
   When the defendant appeared before me he was represented by Mr Habermann, a solicitor employed by the Aboriginal and Torres Strait Island Legal Service

Material Filed in the Court

7. [7]
   I have read the following material:-

1. (i)
   The court file.

2. (ii)
   Application to withdraw a plea of guilty dated 3 October 2014.

3. (iii)
   Submissions from Mr Laing of counsel.

4. (iv)
   Extracts of relevant legislation.

5. (v)
   Affidavit of Daniel Christian Habermann sworn the 01 October 2014.

6. (vi)
   Affidavit of RC sworn 1 December 2014.

7. (vii)
   Affidavits of Philip Stainton sworn 8 December 2014 and 4 March 2015.

8. (viii)
   Affidavit of Anthea Masters sworn the 26 September 2014.

9. (ix)
   Affidavit of Michael Edward Robinson sworn the 30 September 2014.

10. (x)
    Affidavit of Jessica-Anne Victoria Brown affirmed 1 December 2014.

Relevant Statutory Provisions

8. [8]
   There are a number of statuary provision which are relevant to this application. They are as follows:

1. (i)
   Section 552B(1)(b)(2) of the Criminal Code provides that a charge of assault occasioning bodily harm must be heard and determined summarily unless the defendant elects for the matter to be tried by a jury.

2. (ii)
   Section 3 of the Youth Justice Act 1992 “the Act” is in these terms:

1. “(1)
   Schedule 1 sets out the Charter of Youth Justice Principles.

1. (2)
   The principles underlie the operation of this Act.”

3. (iii)
   Section 6 of the Charter of Youth Justice Principles is in these terms:

“A child being dealt with under this Act should have procedures and other matters explained to the child in a way the child understands.”

Part 6 of the Act comprises section 60 to 148.  Section 72 is in these terms:

“72 Explanation of proceeding

1. (1)
   In a proceeding before a court in which a child is charged with an offence, the court must take steps to ensure, as far as practicable, that the child and any parent of the child present has full opportunity to be heard and participate in the proceeding.

2. (2)
   Without limiting subsection (1), the court must ensure that the child and parent understand, as far as practicable—

1. (a)
   the nature of the alleged offence, including the matters that must be established before the child can be found guilty; and

1. (b)
   the court’s procedures; and

1. (c)
   the consequences of any order that may be made.

3. (3)
   Examples of the steps a court may take are—

1. (a)
   directly explaining these matters in court to the child and parent; and

1. (b)
   having some appropriate person give the explanation; and

1. (c)
   having an interpreter or another person able to communicate effectively with the child and parent give the explanation; and

1. (d)
   causing an explanatory note in English or another language to be supplied to the child and parent.”

4. (iv)
   Section 73 is in these terms:

“73 Ordinary practice applies to explanations if child is represented

This part does not—

1. (a)
   prevent an explanation required to be given to a person, or an inquiry required to be made of a person, from being given to or made of a lawyer representing the person; or

1. (b)
   prevent the lawyer from responding to the explanation or inquiry on behalf of the person.”

5. (v)
   Section 78 of the Act is in these terms.

“78 Procedural elections under this Act in relation to an indictable offence replace other elections

The rules set out in this part relating to the election by a child of the procedure in relation to an indictable offence apply despite any right of election that may be conferred on any person under any other Act or any provision of another Act that requires the indictable offence to be heard and decided summarily.’

6. (vi)
   Division 2 of part 6 of the Act is headed “DECISION ON HOW TO PROCEED AT START OF PROCEEDINGS FOR AN INDICTABLE OFFENCE BEFORE CHILDRENS COURT MAGISTRATE.”

7. (vii)
   Subdivision 2 of division 2 is headed “PROCEDURE FOR INDICTABLE OFFENCES OTHER THAN SERIOUS OFFENCES IF CHILD IS LEGALLY REPRESENTED.”  Subdivision 2 includes sections 82 and 83.  They are in these terms:

“82 Application of sdiv 2

This subdivision applies to a proceeding to be conducted before a Childrens Court magistrate (the court) in which a child is—

1. (a)
   charged with an indictable offence other than a serious offence; and

1. (b)
   represented by a lawyer.

83 Explanation and election at start

1. (1)
   Subject to section 77, before evidence is adduced at the proceeding, the court must explain to the child and any parent of the child who is present the child’s right of election mentioned in subsection (2).

1. (2)
   The child may elect—

1. (a)
   to have the proceeding conducted as a committal proceeding; or

1. (b)
   to have the proceeding conducted as a hearing and deciding of the charge summarily by the court.

1. (3)
   The court must also explain to the child and any parent of the child who is present that—

1. (a)
   after all the evidence to be offered in the proceeding on the part of the prosecution has been adduced; and

1. (b)
   the court is of the opinion that the evidence is sufficient to put the child on trial for an indictable offence other than a serious offence; the child may elect—

1. (c)
   to have the proceeding conducted as a committal proceeding; or

1. (d)
   to have the committal proceeding discontinued and any further proceeding conducted as a hearing and deciding of the charge summarily by the court.

1. (4)
   The court must then ask the child whether the child consents to having the charge heard and decided summarily by the court.

1. (5)
   If the child consents, the court must proceed to hear and decide the charge summarily.

1. (6)
   If the child does not give the consent mentioned in subsection (4), the proceeding must be conducted as a committal proceeding, subject to divisions 3 and 4.”

8. (viii)
   Division 4 of part 6 of the Act is headed “PROCEDURE IF A CHILD ENTERS A PLEA OF GUILTY AT A COMMITAL PROCEEDING”.

9. (ix)
   Section 93 is in division 4 and it is in these terms:

“93 If the offence is an indictable offence other than a serious offence

1. (1)
   Subject to section 77, if the offence to which the child pleads guilty is an indictable offence other than a serious offence, the court must explain to the child, and any parent of the child who is present, the child’s right of election mentioned in subsection (2).

1. (2)
   The child may elect—

1. (a)
   to be committed to be sentenced before a court of competent jurisdiction; or

1. (b)
   to be sentenced by the Childrens Court magistrate.

1. (3)
   The court must then ask the child whether the child consents to being sentenced by the Childrens Court magistrate.

1. (4)
   If the child consents, the Childrens Court magistrate must proceed in the same way as is provided under the Justices Act 1886, section 145(2).

1. (5)
   The child does not give the consent mentioned in subsection (4), the court must order the child to be committed to be sentenced before a court of competent jurisdiction.”

10. (x)
    Division 7 of part 6 of the Act is headed, “JURISDICTION OF CHILDREN’S COURT JUDGE”.

10. (xi)
    Subdivision 3 of Division 7 is headed, “CHANGE OF GUILTY PLEA”.  It contains section 106 which is in these terms.

“106 Child may change plea of guilty

1. (1)
   A child who appears before a Childrens Court judge after being committed to be sentenced on an indictable offence is in all cases entitled to enter a plea of not guilty when called on to enter a plea under the Criminal Code, section 600.

2. (2)
   To the extent that this section is inconsistent with the Criminal Code, section 600, this section prevails.

2. (3)
   Evidence that the child previously entered a plea of guilty at the committal proceeding is not admissible in the trial following the change of plea.”

The proceedings on 26 August 2014

9. [9]
   When the matter came on for trial before me on the 26 August 2014 I was informed that the applicant intended to plead guilty to the two subject charges. I arraigned the defendant on each charge. I asked him if he understood them and he replied, “Yeah”. I asked him how he intended to plea to each charge and he replied, “Guilty”. I asked him if he entered the plea of his own free will and he replied “Yeah”.

10. [10]
    I ordered that a pre-sentence custody report be obtained and remanded the defendant to 25 September 2014 pending receipt of the report.

Submissions

11. [11]
    Mr Laing for the applicant submits that my acceptance of the pleas of guilty on 26 August 2014 were either infected with jurisdictional error in which case the pleas are a nullity or, alternatively, if the pleas were entered regularly then if they are not set aside the defendant will suffer a miscarriage of justice.

12. [12]
    As I understand his submission, Sergeant Robinson for the prosecution says that the pleas can only be withdrawn if the applicant satisfies the court that he would suffer a miscarriage of justice if they were not withdrawn.

Discussion

13. [13]
    The provisions of the Act cited above, apart from section 106, set out very clearly the procedure which the court must follow when dealing with a juvenile charged with an indictable offence of the type here in question.

14. [14]
    Section 78 is most instructive. It provides that the rules set out in part 6 of the Act relating to the election by a child of the procedure in relation to an indictable offence apply notwithstanding any other right conferred upon the child under any other Act or any provision of another Act that requires the indictable offence to be heard and decided summarily.

15. [15]
    In Sarhan the Magistrate Zarra and Constable T Dwyer Queensland Police Service [2010] QSC301 at paragraph 3 on page 6, Daubney J said, “…the high court has recently reiterated the notion that the line between jurisdictional error by an inferior court and an error in the exercise of jurisdiction is difficult to define precisely, if it can be defined at all – Kirk V Industrial Court (NSW) (2010) 239 COR 53 at [71]-[73]. That being said, the duty on an inferior court to accord procedural fairness to the parties is fundamental to our system of justice”.

16. [16]
    As noted above, the terms of sections 83and 93 are mandatory. I accept that when I dealt with the matter on 26 August 2014 I did not follow the procedure mandated by those sections and nor did I comply with section 6 of the Youth Justice Principles. The explanations mandated by section 83 were not provided to the defendant or the representative from Child Safety who appeared in court with him. Having pleaded guilty to the two charges, the defendant and the representative from Child Safety were not informed, as required by section 93 of the Act, that he could elect to be sentenced by a Childrens Court Magistrate or a court of competent jurisdiction. Not having informed the court that he elected to be dealt with summarily, section 93(5) of the Act mandated that the court must order that he be committed to be sentenced before a court of competent jurisdiction. This did not occur. I am satisfied that the proceedings were therefore infected with jurisdictional error and the pleas of guilty are a nullity.

17. [17]
    If I am wrong in this regard and it is the case that the pleas of guilty where entered regularly then I am satisfied for the reasons set out below that the defendant would suffer a miscarriage of justice if those pleas where not set aside.

18. [18]
    It is clear from the affidavit material (paragraph 10 of Ms Masters’ affidavit, paragraph 5 of Ms Brown’s affidavit and paragraph 3 of the defendant’s affidavit of 1 December 2014) that prior to entering his plea of guilty, he had maintained his innocence. I note from paragraph 2 of Mr Habermann’s affidavit that prior to 26 August 2014 he had not previously appeared for the defendant in respect to the matter which had been listed for summary hearing on the 26 August 2014.

19. [19]
    I refer to paragraph 3 to 5 of Mr Habermann’s affidavit. They are in these terms:

3. “The matters had been set for hearing on the bases that the client had indicated to another lawyer within the employ of my office that he had a witness, namely Shelby Riddle who supported R’s instructions that he was not guilty of the offence.
4. Obviously, a Brief of Evidence had been provided to our office; this contained a number of statements of complainants and other witnesses.
5. I recall that on the morning of 26 August 2014, I had visited R in an interview room at the Toowoomba Watch House. I had previously been informed by Kevin Rose, Barrister, who is my office manager that the prospective witness, Ms Riddle had not provided a statement and that she had not attended Court to give evidence.  I told him that in the absence of this witness the evidence against him was quiet strong and that he had minimal prospects of beating the charge (sic); and that he should think about pleading guilty.” 

20. [20]
    I also refer to paragraph 64 of Mr Laing’s submissions in which he raises the issue of an inconsistency in the evidence of Crown witnesses and also the failure to interview Ms Riddle who was the applicant’s girlfriend at the time of the incident. Ms Riddle is noted in a QPS index to brief under the section entitled, “9. Witnesses who would tend to help the case of the accused person”.

21. [21]
    In the light of the foregoing I am satisfied that the defendant’s then legal advisers should have endeavoured to contact Ms Riddle and take a proof of evidence from her. If her evidence was favourable to the defendant then her appearance at Court for the trial should have been secured by service of a subpoena. If they could not contact her or she was not prepared to be co-operative or her evidence was not helpful to the defendant then Mr Habermann should have been in a position so advise the defendant and also depose to those facts in his affidavit.

22. [22]
    Mr Habermann does not swear to having advised the defendant that he could seek an adjournment of the trial to pursue Ms Riddle and the defendant swears that he was not advised nor was he aware that he could apply for an adjournment of the trial. I accept the defendant’s evidence on this point.

23. [23]
    Section 106 of the Act is critical for two reasons. Firstly, the plea of guilty can be withdrawn as of right. This does not require the consent of the Judge and therefore the defendant does not have to run the “miscarriage of justice arguments” that would otherwise be the case. Secondly, as far as I am aware, there is no corresponding provision where the matter is dealt with summarily.

24. [24]
    If Mr Habermann felt that the defendant had no alternative but to plead guilty, he should have advised him to enter a plea of guilty and ask to be committed for sentence before a Childrens Court Judge. Being mindful of the provisions of section 106 of the Act, enquiries of Ms Riddle could have continued. If in the meantime those enquiries of Ms Riddle or otherwise had uncovered evidence on which he could rely to defend the charges, he could have, in reliance on section 106 of the Act, changed his plea before the Children’s Court Judge from one of guilty to one of not guilty.

25. [25]
    Finally, having entered a plea of guilty and not having indicated to the court that he wished to be dealt with summarily, I should have committed the defendant for sentence before a Childrens Court Judge.

26. [26]
    In Meissner v R [1995] HCA41 at paragraph 22, 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 of not guilty. An inducement to plead guilty does not necessary have a tendency to pervert the course of justice from an inducement maybe offered simply to assist the person charged to make a free choice in that persons own interests a Court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of the free choice in the interest 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. The principle is stated by Lawton LJ in Inns (1974) 60 Cr App R 231 at 233, ‘The whole basis of a plea on arraignment is that in open Court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the deceased especially his guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgement, nullity closure”. It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats there is a miscarriage of justice. In such a case the court is falsely lead to dispense for the trial on the faith of the defective plea. The course of justice is thus perverted.’ “

27. [27]
    In the present case the defendant was not of full age at the date that he entered his pleas of guilty. He was 16 at the time. In the light of his age, my failure to comply with the relevant provisions of the Act, the shortcomings in the preparation of his case by his then solicitors and in particular their apparent failure to advise him to take advantage of section 106 of the Act, all of which are against a background that he had maintained his innocence up to the date of the plea (and thereafter in his conversation with Ms Brown– see paragraph 12 of her affidavit), it is my view that the pleas of guilty were not entered in an exercise of free choice to preserve the defendant’s own interests. It would be in my view a miscarriage of justice if the pleas were not set aside and I order accordingly.

Damian Carroll

Magistrate