R v AU - [2004] QCA 330

SUPREME COURT OF QUEENSLAND

CITATION:

R v AU [2004] QCA 330

PARTIES:

R
v
AU
(appellant/applicant)

FILE NO/S:

CA No 368 of 2003
DC No 281 of 2003
DC No 281A of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

10 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2004

JUDGES:

McMurdo P, McPherson JA and Jerrard JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal allowed;1.

that the pleas of guilty entered in the District Court on 17 October 2003 on all 25 counts on the ex-officio indictment numbered 281/03 be set aside, the convictions quashed, and new trials be held on the counts on that indictment on which the appellant is either committed for trial or agrees to stand trial on that ex-officio indictment; 2.

that on counts 1, 5, 6, 9 and 12 on the ex-officio indictment numbered 281A/03 the pleas of guilty entered in the District Court on 17 October 2003 be set aside, the convictions quashed, and pleas of not guilty entered, and new trials be held on those counts on which the appellant is committed for trial or agrees to stand trial on that ex-officio indictment;3.

application for leave to appeal against sentence granted and appeal allowed in respect of counts 2, 3, 4, 7, 8, 10 and 11 on that indictment numbered 281A/03 to the extent that it is recommended that the appellant be considered eligible for post prison community based release after he has served 12 months of that sentence.4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where appellant sought to withdraw plea of guilty on appeal – where appellant pleaded guilty to 37 counts of having sexually abused children charged on two separate ex-officio indictments – where no discussion between appellant and his lawyers before appellant pleaded guilty about the allegations relied on by the prosecution on any count charged – where appellant suffering from Parkinson’s disease and early onset dementia – where appellant did not know what conduct was alleged against him or what he was admitting by his pleas – whether plea of guilty was free and voluntary – whether failure to set aside plea would result in a miscarriage of justice

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted on ex-officio pleas of guilty to numerous counts of unlawful and indecent dealing with a child – where applicant sentenced to four years imprisonment – where applicant demonstrably affected by dementia – whether sentence manifestly excessive

Meissner v R (1995) 184 CLR 132, applied
R v M [1995] QCA 394; CA No 225 of 1995, 27 July 1995,…

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 R v AU

Details

AGLC: R v AU [2004] QCA 330
Case: [2004] QCA 330
Decision Date: 10 September 2004

CaseChat Overview and Summary

The appellant, R, was convicted on 37 counts of sexually abusing children, charged under two separate ex-officio indictments, following pleas of guilty entered in the District Court. R appealed against his conviction on the basis that his plea of guilty was not free and voluntary due to his lack of understanding of the charges against him. R suffered from Parkinson’s disease and early onset dementia, which affected his capacity to comprehend the nature of the charges and the implications of his pleas. The appeal further argued that the sentence imposed was manifestly excessive given his medical condition.

The primary legal issues before the court were whether the appellant's plea of guilty was free and voluntary, and if setting aside the plea would result in a miscarriage of justice. Additionally, the court needed to determine if the sentence was manifestly excessive given the appellant's medical circumstances. The court examined the extent to which the appellant's medical conditions impaired his ability to understand the charges and the consequences of his pleas. It also assessed the proportionality of the sentence in light of the appellant's age and medical condition.

The court found that the appellant's pleas of guilty were not free and voluntary because he did not understand the charges against him or the implications of his pleas. This was due to his medical conditions, which significantly impaired his cognitive abilities. Consequently, the court determined that setting aside the pleas and ordering new trials was necessary to prevent a miscarriage of justice. Regarding the sentence, while the court recognised the severity of the crimes, it found the sentence to be manifestly excessive, particularly in light of the appellant's age and medical conditions. The court granted the appeal and recommended that the appellant be considered for post-prison community-based release after serving 12 months.

The court allowed the appeal, set aside the pleas of guilty, quashed the convictions, and ordered new trials on the specified counts. It also granted leave to appeal against the sentence and reduced the sentence for certain counts, recommending the appellant be considered for community-based release after serving 12 months.

Orders

Orders of the court

Appeal allowed;1.

that the pleas of guilty entered in the District Court on 17 October 2003 on all 25 counts on the ex-officio indictment numbered 281/03 be set aside, the convictions quashed, and new trials be held on the counts on that indictment on which the appellant is either committed for trial or agrees to stand trial on that ex-officio indictment; 2.

that on counts 1, 5, 6, 9 and 12 on the ex-officio indictment numbered 281A/03 the pleas of guilty entered in the District Court on 17 October 2003 be set aside, the convictions quashed, and pleas of not guilty entered, and new trials be held on those counts on which the appellant is committed for trial or agrees to stand trial on that ex-officio indictment;3.

application for leave to appeal against sentence granted and appeal allowed in respect of counts 2, 3, 4, 7, 8, 10 and 11 on that indictment numbered 281A/03 to the extent that it is recommended that the appellant be considered eligible for post prison community based release after he has served 12 months of that sentence.4.

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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CITATION:	R v AU [2004] QCA 330
PARTIES:	R v AU (appellant/applicant)
FILE NO/S:	CA No 368 of 2003 DC No 281 of 2003 DC No 281A of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	10 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	11 June 2004
JUDGES:	McMurdo P, McPherson JA and Jerrard JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal allowed;1. that the pleas of guilty entered in the District Court on 17 October 2003 on all 25 counts on the ex-officio indictment numbered 281/03 be set aside, the convictions quashed, and new trials be held on the counts on that indictment on which the appellant is either committed for trial or agrees to stand trial on that ex-officio indictment; 2. that on counts 1, 5, 6, 9 and 12 on the ex-officio indictment numbered 281A/03 the pleas of guilty entered in the District Court on 17 October 2003 be set aside, the convictions quashed, and pleas of not guilty entered, and new trials be held on those counts on which the appellant is committed for trial or agrees to stand trial on that ex-officio indictment;3. application for leave to appeal against sentence granted and appeal allowed in respect of counts 2, 3, 4, 7, 8, 10 and 11 on that indictment numbered 281A/03 to the extent that it is recommended that the appellant be considered eligible for post prison community based release after he has served 12 months of that sentence.4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where appellant sought to withdraw plea of guilty on appeal – where appellant pleaded guilty to 37 counts of having sexually abused children charged on two separate ex-officio indictments – where no discussion between appellant and his lawyers before appellant pleaded guilty about the allegations relied on by the prosecution on any count charged – where appellant suffering from Parkinson’s disease and early onset dementia – where appellant did not know what conduct was alleged against him or what he was admitting by his pleas – whether plea of guilty was free and voluntary – whether failure to set aside plea would result in a miscarriage of justice CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted on ex-officio pleas of guilty to numerous counts of unlawful and indecent dealing with a child – where applicant sentenced to four years imprisonment – where applicant demonstrably affected by dementia – whether sentence manifestly excessive Meissner v R (1995) 184 CLR 132, applied R v M [1995] QCA 394; CA No 225 of 1995, 27 July 1995,…