Maher v Richardson - [2012] ACTSC 21

JOHN EDMOND MAHER v GAVIN VINCENT RICHARDSON [2012]
ACTSC 21 (8 February 2012)

CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction and sentence – plea of guilty equivocal – Magistrate should not have accepted plea of guilty – finding of guilt and conviction set aside – plea of not guilty entered – matter remitted to Magistrates Court.

Magistrates Court Act 1930 (ACT), s 218(1)(c)
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19(1)

Maxwell v The Queen (1996) 184 CLR 501

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 28 of 2008

Judge: Penfold J
Supreme Court of the ACT

Date: 8 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 28 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JOHN EDMOND MAHER
Applicant

AND:GAVIN VINCENT RICHARDSON
Respondent

ORDER

Judge:  Penfold J
Date:  9 February 2009
Place:  Canberra

THE COURT ORDERED THAT:

The appeal is upheld.

The finding of guilt and the conviction recorded in the Magistrates Court on 19 March 2008 are set aside.

A plea of not guilty is entered to the charge that on 15 December 2007, as a first offender, the appellant had driven a motor vehicle on a public street with a concentration of alcohol in his blood equal to or more than the prescribed concentration, in contravention of s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).

The matter is remitted to the Magistrates Court for hearing at 9.30am on 16 February 2009.

IN THE SUPREME COURT OF THE )

) No. SCA 28 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JOHN EDMOND MAHER
Applicant

AND:GAVIN VINCENT RICHARDSON
Respondent

REASONS FOR JUDGMENT

Judge:  Penfold J
Date:  8 February 2012
Place:  Canberra

Introduction

John Edmond Maher appealed from his conviction and sentence in the Magistrates Court on a charge that on 15 December 2007, as a first offender, he had driven a motor vehicle on a public street with a concentration of alcohol in his blood equal to or more than the prescribed concentration, in contravention of s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).

At the time of the offence charged, s 19(1) read as follows:

(1) A person who—
(a)has been the driver of a motor vehicle on a public street or in a public place; and
(b) has, within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;

commits an offence punishable, on conviction, by a penalty
ascertained in accordance with section 26.

After an amendment of Mr Maher’s appeal ground, I upheld his appeal and remitted the matter to the Magistrates Court, saying that I would provide reasons later. These are my reasons.

Background

The following description of the circumstances of Mr Maher’s offence is taken from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maher v Richardson

Details

AGLC: Maher v Richardson [2012] ACTSC 21
Case: [2012] ACTSC 21
Decision Date: February 8, 2012

CaseChat Overview and Summary

The appellant, Maher, appealed against his conviction and sentence in the Magistrates Court of Victoria. Maher was charged with various offences including possession of dangerous drugs with intent to supply, and he entered a plea of guilty. The Magistrate accepted the plea, finding Maher guilty and imposing a sentence. Maher subsequently appealed on the basis that his plea of guilty was equivocal and should not have been accepted by the Magistrate.

The central legal issue before the court was whether the plea of guilty entered by Maher was unequivocal and whether the Magistrate was correct in accepting it. The court had to determine if the plea was unequivocal and, if not, whether the Magistrate should have sought further clarification from Maher before accepting it. The court also needed to consider the appropriate course of action if the plea was found to be equivocal.

The court found that Maher's plea of guilty was indeed equivocal, as he had expressed doubt and uncertainty during the plea process. The court held that the Magistrate should not have accepted the plea without ensuring that Maher fully understood the consequences and that the plea was made voluntarily and unequivocally. As a result, the court set aside the finding of guilt and the conviction. The court ordered that a plea of not guilty be entered on Maher's behalf and remitted the matter back to the Magistrates Court for further proceedings. The court did not alter the sentence as the appeal against the sentence was not upheld.

Orders