Police v Donnelly - [2023] ACTMC 14

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Donnelly
Citation:	[2023] ACTMC 14
Hearing Dates:	6 April 2023 and 24 May 2023
DecisionDate:	9 June 2023
Before:	Magistrate Temby
Decision:	See [48]
Catchwords:	CRIMINAL PROCEDURE – entry of pleas – withdrawal of guilty plea – correct legal test to be applied on application for leave to withdraw guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – considerations bearing upon “interests of justice” test
Legislation Cited:	Supreme Court Act 1933 (ACT) s 37O
Cases Cited:	Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 R v Boyle [2012] ACTSC 69 R v Cringle [2011] ACTSC 27 R v Fairclough [2019] ACTSC 215 R v Mambor [2010] ACTSC 30 R v Sinclair [2012] ACTSC 64 The Queen v Francisco Javier Gomez (2007) 1 ACTLR 145 White v R [2022] NSWCCA 241
Parties:	Oliver Masters ( Informant) Brandon Donnelly ( Defendant)
Representation:	Solicitors ACT Director of Public Prosecutions ( Informant) Self-represented ( Defendant)
File Numbers:	CC 4410-4412 of 2021 CC 8433–8435, 8437, 8440 of 2021 CC 8442–8446 of 2021 CC 9181 of 2021 CC 7293 of 2022

MAGISTRATE TEMBY

Introduction

The Defendant has brought a plea traversal application with respect to 14 offences to which he has entered a plea of guilty. There are two groups of offences.

First Group of Offences

The first group of offences (charges CC2021/4410, CC2021/4411 and CC2021/4412) (First Group) arise from conduct engaged in by the Defendant on 26 February 2021. The facts relevant to the First Group of offences are set out in a Statement of Facts which was admitted into evidence at the hearing of the Defendant’s plea traversal application on 24 May 2023 as Exhibit 4. The key facts are:

(a)police were driving an unmarked police vehicle on Bowen Drive, a road in Barton, in the ACT;
(b)a car, an Audi A3, driven by a male driver, passed the police at a speed greater than the posted speed limit of 60 km/h. Police estimated the vehicle to be travelling at 70 to 80 km/h;
(c)police followed the car onto Parkes Way, a road in Russell and Acton and, through the activation of their emergency lights and sirens, caused the driver to stop the car;
(d)police identified the driver as the Defendant; and
(e)police conducted a number of checks, which revealed that:
(i)the Defendant did not hold an ACT driver licence;
(ii)the Defendant’s learner’s driver licence had been suspended and the Defendant had not reapplied for a driver licence; and
(iii)the car was unregistered and uninsured (it had not been registered since 2 January 2021).

These facts support the charges brought against the Defendant in the First Group of offences for:

(a)an offence against s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) – driving a motor vehicle on a road or road related area in circumstances where the Defendant was…

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 Police v Donnelly

Details

AGLC: Police v Donnelly [2023] ACTMC 14
Case: [2023] ACTMC 14
Decision Date: 9 June 2023

CaseChat Overview and Summary

The case involved the applicant, Donnelly, who was charged with drug-related offences. Donnelly initially pleaded guilty to the charges but later sought to withdraw his plea before conviction and sentence. The court was tasked with determining the correct legal test for granting leave to withdraw a guilty plea in such circumstances and whether Donnelly had satisfied that test. The applicant argued that the current legal test, which required a demonstration that a miscarriage of justice would occur if the plea withdrawal was refused, was too stringent and that the court should also consider the broader interests of justice. The court considered the principles established in previous case law and the statutory provisions governing the withdrawal of pleas.

The primary issue before the court was the appropriate legal test to be applied when a defendant seeks to withdraw a guilty plea before conviction and sentence. The court had to determine whether the established test, which required the defendant to demonstrate a miscarriage of justice if the plea were not withdrawn, was sufficient, or whether it should also consider the broader interests of justice. This involved examining the relevant statutory provisions, the principles established in precedent, and the specific circumstances of the case, including the reasons for the applicant's desire to withdraw his plea.

In delivering the judgment, the court reaffirmed the existing test for the withdrawal of pleas before conviction and sentence, holding that it was not necessary to demonstrate a miscarriage of justice. The court held that the correct test was whether granting leave to withdraw the plea would be in the interests of justice. This encompassed considerations such as the reasons for the change of plea, the stage of the proceedings, and the impact on the administration of justice. The court found that the applicant had not adequately demonstrated that the withdrawal of his plea was in the interests of justice. As such, the application to withdraw the plea was dismissed.

The final orders of the court were that the application to withdraw the guilty plea was dismissed. The court did not grant leave for Donnelly to withdraw his plea before conviction and sentence, and the case proceeded to conviction and sentencing on the basis of the original guilty plea.

Orders

Orders of the court

See [48]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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