R v Donahue

[2014] QCA 198

[2014] QCA 198

COURT OF APPEAL

MUIR JA
GOTTERSON JA
ANN LYONS J

CA No 299 of 2013
DC No 56 of 2013
DC No 67 of 2013

THE QUEEN

v

DONAHUE, Algen Clinton  Appellant

BRISBANE

THURSDAY, 21 AUGUST 2014

JUDGMENT

MUIR JA:  The appellant was granted leave to abandon the grounds of appeal in his notice of appeal and to substitute, therefore, the following ground.  With respect to count 1 upon indictment 56 of 2013, there has been a miscarriage of justice in respect of the conviction, as the appellant was not and could not in truth be guilty of that offence.  The appellant was convicted on 10 September 2013 of his own plea of guilty of 40 property offences, mainly burglary and stealing or attempted burglary.  He was 17 years of age.  Most of the offending occurred when the appellant was a minor.  On many of the counts, the only evidence against him was his own admissions.

The appellant, who was legally represented, was arraigned in bulk.  He indicated that he had read each count on the indictment and understood its content.  It later emerged that on 11 November 2011, the date count 1 on the indictment, a burglary and stealing offence, was alleged to have been committed, the appellant was in detention.  The mistake most probably occurred through the appellant’s willing cooperation with the police on what was described as a drive around interview in which police officers took the appellant to premises known to have been burgled.  In admitting the count 1 offence, the appellant was either mistaken about the date or paid it insufficient attention.  The respondent properly accepts that it would be an affront to the system of justice to allow the conviction to stand.  I agree.

I would order that (1) the appeal be allowed, (2) the plea of guilty to count 1 on indictment 56 of 2013 be set aside, (3) the conviction and sentence on that count be set aside and a verdict of acquittal be entered on that count.

GOTTERSON JA:  I agree.

ANN LYONS J:  I agree.

MUIR JA:  The orders of the Court will be as I have stated.  Thank you, gentlemen.

MR RICHARDS:  Thank you, your Honours.

MR McCARTHY:  Thank you, your Honours.