Newey v Queensland Police Service

[2021] QDC 231

DISTRICT COURT OF QUEENSLAND

CITATION:

Newey v Queensland Police Service [2021] QDC 231

PARTIES:

LESLIE NEWEY

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

2247 of 2020

DIVISION:

Appellant

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Magistrates Court, Redcliffe

DELIVERED ON:

10 September 2021, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

10 September 2021

JUDGE:

Rackemann DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – appeal pursuant to s 222 of the Justices Act 1886 (Qld) –where the appellant pleaded guilty to one count of common assault in the Magistrates Court – where the appellant claims that he is innocent and his victim was the assailant – whether the plea was entered in the exercise of a free choice – where the evidence from the Magistrates Court proceedings did not indicate that the plea of guilty was involuntary – where the appellant did not request an adjournment for the purposes of obtaining material to demonstrate that the plea was involuntary – where appeal not on the sole ground available pursuant to s 222(2)(c)

CASES: 

Long v Spivey [2004] QCA 118

LEGISLATION: 

Justices Act 1886 (Qld) s 222(2)(c)

COUNSEL:

The appellant appeared on his own behalf

K Droney (sol) for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Office of the Director of Public Prosecutions for the respondent

1. This is an appeal from a decision in the Magistrates Court whereby the appellant was convicted of common assault and fined $800.  A conviction was recorded.  The appellant is self-represented.  His grounds of appeal are not well focused but relate to his claims that he was, in fact, innocent and that his victim was, instead, his assailant.  The grounds of appeal make no mention of his sentence.  The appeal, therefore, appears to be one against conviction only.

1. The difficulty for the appellant is that the matter proceeded in the Court below by way of a plea of guilty. Section 222(2)(c) of the Justices Act 1886 (Qld) provides as follows:

If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.

1. The appeal would appear to be incompetent since it is not based on the sole ground which is available. 

1. I am mindful that in Long v Spivey [2004] QCA 118 at [22] it was said that what appears, on its face, to have been a plea of guilty to an offence may be shown, in reality, not to have been such a plea if it was not entered in the exercise of a free choice. An examination of the transcript shows that the learned Magistrate went to some trouble to ensure that the plea of guilty in the first instance was entered as a matter of free choice of the then defendant, now appellant.

1. In that regard, when the charge was read out, the learned Magistrate first asked whether the defendant understood it, to which he was given an affirmative answer. He then asked the defendant how he pleaded, to which the defendant answered, “I’ll plead guilty, your Honour.” His Honour then commented that the response seemed a little equivocal and then specifically asked, “Is that a plea of guilty of your own free will?” to which the defendant replied, “It is, Sir – your Honour”. The Magistrate then went further to ask whether anyone had told the defendant that he had to plead guilty, to which the defendant answered in the negative. He then asked the defendant whether he accepted all of the facts as alleged, to which the defendant answered in the affirmative. There being no other evidence before me, it would appear that this is a case of a plea of guilty as a matter of free choice and that section 222(2)(c) is operative.

1. In that regard, I took him to the relevant parts of the transcript where he had indicated to the Magistrate that the plea was entered of his own free will and without anyone having told him to plead guilty.  And I endeavoured to determine whether he now wished to contradict that and whether he wanted an adjournment in order to prepare material to do so.  I was unable, however, to obtain a clear answer to that.  And I did not perceive the defendant to make any request for an adjournment for the purposes of obtaining material to put before the Court in order to contradict what appeared, on the face of the transcript or to otherwise establish that the plea was not voluntary. In the course of my endeavours to ascertain the appellant’s position, he hung up the telephone. 

1. In the circumstances, it seems to me that, for the reasons that I have given, the appeal is an appeal against conviction.  It is not an appeal which is on a ground that the Court can consider given that the defendant entered a voluntary plea of guilty at first instance.  Accordingly, the appeal is dismissed.