R v BCJ - [2012] QCA 316

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCJ [2012] QCA 316

PARTIES:

R
v
BCJ
(appellant)

FILE NO/S:

CA No 171 of 2012
DC No 18 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Childrens Court at Townsville

DELIVERED ON:

20 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2012

JUDGES:

Holmes and White JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.      The appeal is allowed.

2.      The appellant’s guilty pleas are set aside.

3.      The appellant’s convictions are set aside.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where appellant was convicted on pleas of guilty to two counts of indecent treatment of a child under 12 and one count of rape – where appellant appeals against the convictions – where appellant was 14 years old at the time of the offences, and 17 years old at the time of arraignment – where appellant applied to have the pleas of guilty vacated – where primary judge refused the application, finding that there was no miscarriage of justice and that the guilty pleas should not be set aside – where the pleas were entered on strong legal advice – where the advice was given at a conference at the court shortly before the appellant's trial was to commence – where the appellant suffered from intellectual and learning deficits – where the appellant maintained his innocence throughout – where there was an arguable defence – whether the pleas of guilty were made freely and voluntarily – whether there has been a miscarriage of justice

Borsa v The Queen [2003] WASCA 254, cited
Meissner v The Queen (1995) 184 CLR 132, [1995] HCA 41, cited
R v Carkeet [2009] 1 Qd R 190, [2008] QCA 143, cited
R v Verrall [2012] QCA 310, cited
R v Wade [2012] 2 Qd R 31; [2011] QCA 289, considered

COUNSEL:

G McGuire for the appellant
S J Farnden for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The appellant appeals against his conviction on two counts of indecent treatment of a child under 12 and one count of digital rape, notwithstanding his plea of guilty to all three counts. His outline of submissions referred to the appeal as brought against the primary judge’s refusal of his application to have the pleas of guilty set aside, but the notice of appeal is in the form of an appeal against conviction. R v Verrall[1] makes it clear that the appeal is properly brought against the conviction, not the primary judge’s order.
[1]R v Verrall [2012] QCA 310.

The appellant was 14 years old in July 2009, when the offences were said to have been committed. The indictment was presented on 25 July 2011. On 3…

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 BCJ

Details

AGLC: R v BCJ [2012] QCA 316
Case: [2012] QCA 316
Decision Date: 20 November 2012

CaseChat Overview and Summary

In the matter of R v BCJ, the appellant was convicted on pleas of guilty to two counts of indecent treatment of a child under 12 and one count of rape. The appellant, who was 14 years old at the time of the offences and 17 at the time of arraignment, appealed against the convictions, seeking to vacate the pleas of guilty. The primary judge had refused the application, finding no miscarriage of justice and that the guilty pleas should not be set aside. The appellant had entered the pleas following strong legal advice, given at a conference at the court just before the trial was to commence. The appellant suffered from intellectual and learning deficits and maintained his innocence throughout, despite there being an arguable defence.

The key legal issues for the court were whether the pleas of guilty were made freely and voluntarily, and whether there had been a miscarriage of justice. The court considered the appellant's age, intellectual and learning deficits, and the strength of the legal advice received. The appellant had maintained his innocence throughout and there was an arguable defence. The court had to determine whether these factors were sufficient to establish that the pleas were not made freely and voluntarily, and whether there had been a miscarriage of justice. The court held that the appellant's age, intellectual and learning deficits, and the circumstances in which the legal advice was given were sufficient to establish that the pleas were not made freely and voluntarily. The court also found that there had been a miscarriage of justice, given the appellant's maintained innocence and the arguable defence.

The appeal was allowed, the appellant's guilty pleas were set aside, and the convictions were set aside. The court found that the appellant's age, intellectual and learning deficits, and the circumstances in which the legal advice was given were sufficient to establish that the pleas were not made freely and voluntarily. The court also found that there had been a miscarriage of justice, given the appellant's maintained innocence and the arguable defence. The court set aside the guilty pleas and the convictions, allowing the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The appellant’s guilty pleas are set aside.

3. The appellant’s convictions are set aside.

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 BCJ [2012] QCA 316
PARTIES:	R v BCJ (appellant)
FILE NO/S:	CA No 171 of 2012 DC No 18 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Childrens Court at Townsville
DELIVERED ON:	20 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2012
JUDGES:	Holmes and White JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed. 2. The appellant’s guilty pleas are set aside. 3. The appellant’s convictions are set aside.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where appellant was convicted on pleas of guilty to two counts of indecent treatment of a child under 12 and one count of rape – where appellant appeals against the convictions – where appellant was 14 years old at the time of the offences, and 17 years old at the time of arraignment – where appellant applied to have the pleas of guilty vacated – where primary judge refused the application, finding that there was no miscarriage of justice and that the guilty pleas should not be set aside – where the pleas were entered on strong legal advice – where the advice was given at a conference at the court shortly before the appellant's trial was to commence – where the appellant suffered from intellectual and learning deficits – where the appellant maintained his innocence throughout – where there was an arguable defence – whether the pleas of guilty were made freely and voluntarily – whether there has been a miscarriage of justice Borsa v The Queen [2003] WASCA 254, cited Meissner v The Queen (1995) 184 CLR 132, [1995] HCA 41, cited R v Carkeet [2009] 1 Qd R 190, [2008] QCA 143, cited R v Verrall [2012] QCA 310, cited R v Wade [2012] 2 Qd R 31; [2011] QCA 289, considered
COUNSEL:	G McGuire for the appellant S J Farnden for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent