Francisco Javier Gomez v The Queen; the Queen v Francisco Javier Gomez
[2006] ACTCA 18
•4 OCTOBER 2006
FRANCISCO JAVIER GOMEZ v THE QUEEN
THE QUEEN v FRANCISCO JAVIER GOMEZ
[2006] ACTCA 18 (4 OCTOBER 2006)
CRIMINAL LAW AND PROCEDURE – power to permit change of plea after conviction – trial judge not functus – appeal upheld.
WORDS AND PHRASES – ‘conviction’
Proceeds of Crime Act 1987 (Cth), s 5
Crimes Act 1900 (NSW), s 52AA
Maxwell v The Queen (1996) 184 CLR 501
Director of Public Prosecutions (Cth) v Helou (2003) 58 NSWLR 574
Director of Public Prosecutions (Vic) v McCoid [1988] VR 982
Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257
R v Holton (2004) 41 MVR 89
R v Stone (2005) 64 NSWLR 413
Keys v West (2006) 160 A Crim R 535
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 43-2005
No. SCC 12 of 2005
No. ACTCA 48-2005
No. SCC 12 of 2005
Judges: Crispin P, Gray and Gyles JJ
Court of Appeal of the Australian Capital Territory
Date: 4 October 2006
IN THE SUPREME COURT OF THE ) No. ACTCA 43-2005
AUSTRALIAN CAPITAL TERRITORY ) No. SC 12 of 2005
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: FRANCISCO JAVIER GOMEZ
Appellant
AND: THE QUEEN
Respondent
IN THE SUPREME COURT OF THE ) No. ACTCA 48-2005
AUSTRALIAN CAPITAL TERRITORY ) No. SC 12 of 2005
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Appellant
AND: FRANCISCO JAVIER GOMEZ
Respondent
O R D E R
Judges: Crispin P, Gray and Gyles JJ
Date: 3 August 2006
Place: Canberra
THE COURT ORDERED THAT:
The appellant be granted leave to apply out of time for leave to appeal against his conviction.
The appeal against conviction and sentence be upheld.
The orders made at first instance in relation to conviction and sentence be set aside.
The matter be remitted to Connolly J to be dealt with according to law.
IN THE SUPREME COURT OF THE ) No. ACTCA 43-2005
AUSTRALIAN CAPITAL TERRITORY ) No. SC 12 of 2005
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: FRANCISCO JAVIER GOMEZ
Appellant
AND: THE QUEEN
Respondent
IN THE SUPREME COURT OF THE ) No. ACTCA 48-2005
AUSTRALIAN CAPITAL TERRITORY ) No. SC 12 of 2005
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Appellant
AND: FRANCISCO JAVIER GOMEZ
Respondent
Judges: Crispin P, Gray and Gyles JJ
Date: 4 October 2006
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
On 3 August 2006 the following orders were made:
(1) Appellant granted leave to apply out of time for leave to appeal against his conviction.
(2) Appeal against conviction and sentence upheld.
(3) Orders made at first instance in relation to conviction and sentence set aside.
(4) Matter remitted to Connolly J to be dealt with according to law.
Reasons were reserved. The reasons now follow.
On 29 August 2005 the appellant, Francisco Javier Gomez, was arraigned before Connolly J on an indictment filed on 27 July 2005. He was represented by counsel. He pleaded guilty to count 1 on the indictment, which was possession of a traffickable quantity of a prohibited substance, namely, heroin, for the purpose of supply. That plea was accepted in full satisfaction of the indictment. Connolly J ordered that a conviction be recorded against Gomez on the count of the indictment to which he pleaded guilty and that order was entered on 29 August 2005. The appellant was remanded for sentence before Connolly J on 23 September 2005.
On 14 September 2005 the appellant applied in person to Connolly J for leave to withdraw the plea of guilty that he had entered on 29 August 2005. Connolly J held that, having recorded a conviction, his function had ended and accordingly there was no jurisdiction to permit the plea to be changed. The only remedy was to seek to appeal. Connolly J referred to the decisions of Maxwell v The Queen (1996) 184 CLR 501 and Director of Public Prosecutions (Cth) v Helou (2003) 58 NSWLR 574.
The Director of Public Prosecutions does not now seek to support that ruling. As the point is of some general importance, it is appropriate to explain why, in our opinion, that concession is correct.
Neither Maxwell nor Helou is directly in point. In Maxwell the accused pleaded not guilty to a charge of murder but guilty to a charge of manslaughter on the basis of diminished responsibility. When the trial judge came to consider the material placed before him for the purpose of sentencing, he expressed doubt whether he could accept the plea as he was not satisfied that the defence of diminished responsibility was made out. The hearing was adjourned and, when it resumed, the prosecution tendered further evidence including a retraction by a prosecution psychiatrist who had been of the opinion the accused suffered from diminished responsibility. The prosecutor did not withdraw his election to accept the appellant’s plea but submitted that the trial judge should reject the plea. The judge concluded he had power to reject the plea and did so. Two questions were posed to the Court of Criminal Appeal:
1.Can the prosecution withdraw the acceptance of a plea after a plea has been accepted?
2.Has a trial judge, when a plea has been accepted by the Crown in full satisfaction of an indictment, any power to reject the plea?
The Court of Criminal Appeal answered both questions in the affirmative and dismissed the appeal. It is only the first question which has any relevance here.
On appeal to the High Court, Dawson and McHugh JJ (at 515) and Gaudron and Gummow JJ (at 536) were of the opinion that question 1 should be answered in the affirmative, with the leave of the Court. The decision is not directly in point as no conviction had been formally recorded. However, the judgments cover much relevant ground. The affirmative answer to question 1 has persuasive force here.
Helou concerned the Proceeds of Crime Act 1987 (Cth) which provides powers in relation to property where a person is convicted of a serious offence. There is a special statutory definition of ‘conviction’ in s 5(1) of that Act, which provided:
For the purposes of this Act, a person shall be taken to be convicted of an offence if:
(a)the person is convicted, whether summarily or on indictment, of the offence;
(b)the person is charged with, and found guilty of, the offence but is discharged without conviction;
(c)a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence; or
(d)the person absconds in connection with the offence.
On 26 November 2001 Helou had pleaded guilty to one count of possessing prohibited imports, with another offence to be taken into account in sentencing. The plea of guilty having been entered, the judge remanded Helou for sentence and ordered that a pre-sentence report be obtained. Helou was not formally convicted until 13 August 2002 when sentence was pronounced. The Court of Appeal followed the decisions of Director of Public Prosecutions (Vic) v McCoid [1988] VR 982 and Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257 and held that, for the purposes of legislation of the type in question, all that is necessary for conviction is that the judge should accept and proceed upon a jury’s verdict of guilty or upon a plea of guilty. That is sufficiently established if the judge remands the prisoner in custody for sentence. The Court of Appeal was asked to reconsider those decisions in the light of the decision in Maxwell. The Court declined to do so, pointing out that Maxwell was decided in a different statutory setting where finality of adjudication was the issue. Helou is restricted to the particular context under consideration.
The authorities relating to the various meanings of ‘conviction’ and its effect have been extensively examined in some recent cases in New South Wales including R v Holton (2004) 41 MVR 89; R v Stone (2005) 64 NSWLR 413; and Keys v West (2006) 160 A Crim R 535. The closest to the present point is Holton. In that case, the accused pleaded guilty to one of two counts in the indictment and the trial judge ordered a conviction on that count and remanded the accused for sentence. It was expected the trial would proceed on the other count. The New South Wales double jeopardy provision (s 52AA(6) of the Crimes Act 1900 (NSW)) was then perceived to cause a problem. Later, another judge gave the Crown leave to withdraw the indictment previously presented and to present a fresh indictment and vacated the order of conviction made by the first judge. Grove J held that the entry of judgment of conviction was provisional in the sense that it remained open to the appellant to be permitted to change his plea to not guilty at any time until the case was finally disposed of by sentence or otherwise and that there was jurisdiction to vacate the conviction ([33]–[37]). Smart AJ held that, in the circumstances, it was correct to treat the acceptance of the plea of guilty as provisional only pending actual sentence or some other disposal of that count ([147]–[148]).
In our opinion, the order of conviction did not render Connolly J functus in any sense. The indictment remained on foot until sentence. He remained in charge of the case. Entry of the conviction was not a final order, although effective until set aside. In our opinion, there was power for Connolly J to set the order aside and permit a change of plea upon an appropriate case being made out. The alternative view would have unfortunate consequences. That can be illustrated by considering what would happen if, on hearing the evidence on sentence, it became apparent that it would not be proper to record a conviction because of evidence which was not known to the trial judge at the time of acceptance of the plea of guilty. In such a case, and generally, it would be most unsatisfactory if an accused could only appeal against the conviction.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 4 October 2006
Mr Gomez appeared in person
Counsel for the Crown: Mr R C Refshauge SC
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 3 August 2006
Date of orders: 3 August 2006
Date of reasons: 4 October 2006
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