R v Davy[2009] QSC 48

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J

Indictment No 779 of 2005

THE QUEEN

v.

RAYMOND PAUL DAVY

BRISBANE

..DATE 10/03/2009

ORDER

HIS HONOUR:  This matter was before me for sentence.  In the course of the sentencing process, counsel for the prisoner tendered as Exhibit 5, a report by Meg Perkins, a psychologist, dated 31st of March 2008.  One section in that report is headed "Attitude Towards Offending Behaviour".  In the course of discussion with counsel, I expressed the view that the weight which could be given to the contents of that section was diminished by the fact that the attitude there recorded was in the form of hearsay and it was hearsay given in circumstances where the accused could easily have given testimony to establish his attitude in a way which would have enabled me to make an assessment of it more accurately than through the report.

I would add, also, that the giving of evidence would make the expression contemporary rather than an expression over a year old. 

In the light of that, counsel took instructions and the prisoner, in consequence, entered the witness box to give evidence.  The evidence which was given covered a larger field than simply his attitude to his offending behaviour.  It consisted of an elaborate explanation of what the behaviour was.

In the course of that evidence, it became apparent, and this was quite clear by the conclusion of the evidence, that the prisoner denied doing anything which would amount to an unlawful killing.  His description of the events which occurred would, if accepted, mean that he was not guilty of any offence.

At the end of his evidence-in-chief, that point was discussed by me with counsel.  I have been referred by counsel to the decision of the Court of Appeal in The Queen v GV [2006] QCA 394 which sets out quite clearly the law as I have always understood it to be.  That is, and I quote: 

"Those cases and others establish the proposition repeated in the annotations to section 598 of the Criminal Code that a plea of guilty which is not in plain, unambiguous and unmistakable terms must be treated as a plea of not guilty, and further, that where on a plea of guilty a defendant so qualifies the plea by giving an explanation in relation to the matter with which he has been charged, he should be taken to be pleading not guilty.  The Court may reject the plea of guilty at any time prior to the passing of sentence."

The Court of Appeal then cited an example, referring to the decision of the High Court in Maxwell v The Queen, and later wrote: 

"When it became apparent to the judge that the facts on which he was being asked to sentence the applicant showed that he had at least arguably a complete defence to the charge, the judge should have directed that a plea of not guilty be entered in place of the plea of guilty.  In those circumstances, the applicant was unfairly denied a fair opportunity of acquittal and he should be given leave to withdraw his plea of guilty and a plea of not guilty entered in its place."

In the present case, the applicant has not sought to withdraw his plea of guilty.  Nonetheless, it seems to me that I am bound by compelling authority to take the course referred to in the last passage quoted.  The circumstances here show plainly that the applicant has put forward a version of events which, if accepted, would mean that he had a complete defence to the charge, which in the indictment is murder and which, as things presently stand, is manslaughter by reason of the acceptance of the plea by the Crown.  Neither of those is consistent with a plea of not guilty.

I therefore direct that a plea of not guilty be entered in place of the plea of guilty recorded in this Court on the 10th of March 2008.

...

HIS HONOUR:  I order that a plea of not guilty be entered in place of the plea of guilty entered on the 10th of March 2008.  I direct that the matter be reviewed on the 20th of March 2009, legal representatives only required and I remand the prisoner in custody.