Hargrave v The Queen

[2005] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION:

Hargrave v The Queen [2005] QDC 246

PARTIES:

JOHN HARGRAVE
Applicant
v

THE QUEEN

Respondent

FILE NO:

1027 of 2005 (Brisbane File No.)
432 of 2004 (Ipswich File No.)

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

20 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 April 2005

JUDGE:

Dearden DCJ

ORDER:

 Application refused

CATCHWORDS:

Set aside plea- unlawful stalking- assault- miscarriage of justice- serious issue to be tried- real doubt as to guilt.

Criminal Code s. 590AA

Boag (1994) 73 A Crim R 35, 36-37
Liberti (1991) 55 Crim R 120
R v Mundraby [2004] QCA 493
R v Murphy [1965] VR 187

COUNSEL:

Mr S. L. Kissick for the applicant  

Mr C. Power for the respondent

SOLICITORS:

Don McMillan for the applicant  

Director of Public Prosecutions for the respondent

1. This is an application by the defendant, John Hargrave, pursuant to s 590AA of the Criminal Code, seeking to set aside pleas of guilty entered in the Ipswich District Court on 6 October 2004, to charges of unlawful stalking and assault (Indictment 432/04).

Applicable Law

1. This application concerns the exercise of a discretion by this Court, requiring the applicant to show that “a miscarriage of justice has occurred or would occur if [the applicant] was not allowed to withdraw his plea” (see R v Mundraby [2004] QCA 493 per McPherson JA at para 11 and Boag (1994) 73 A Crim R 35, 36-37). The circumstances capable of amounting to a “miscarriage of justice” must indicate “that the plea of guilty was ‘not really attributable to a genuine consciousness of guilt’” (see R v Mundraby per McPherson JA at para 11, R v Murphy [1965] VR 187, Boag at p 37).  In Liberti (1991) 55 Crim R 120, Kirby P, at pp 121-122, outlined a test that required the applicant to show either:

   (a)that he or she did not appreciate the nature of the charge or did not intend to submit that he or she was guilty of it; or

   (b)that, upon the admitted facts, he or she could not in law have been convicted of the offence(s) charged (see also R v Mundraby per McPherson JA at para 11).

2. Courts must approach an application to set aside a plea of guilty with significant caution (see Liberti per Kirby P at p 122 and R v Mundraby per Jerrard JA at para 21).

Applicant’s Submissions

1. Mr Kissick, who appears for the applicant in respect of this application, (but was not the counsel who appeared when the pleas of guilty were entered) submits:

   (i)there is a serious issue to be tried; and

   (ii)there is real doubt as to the guilt of the applicant in respect of the offences charged.

2. Mr Kissick accepts that his client’s pleas of guilty were freely and voluntarily entered after receiving proper, appropriate and competent legal advice, but stresses the proposition that a miscarriage of justice will have occurred where the Court cannot be satisfied that any offence has actually…